Himachal Pradesh High Court
State Of Himachal Pradesh And Others vs Dr.Hitesh Gupta And Others on 19 March, 2016
Bench: Chief Justice, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No.350 of 2016.
Judgment reserved on: 16.03.2016.
Date of decision: March 19, 2016.
State of Himachal Pradesh and others .....Petitioners.
of Versus Dr.Hitesh Gupta and others .....Respondents.
Coram rt The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? 1Yes For the Petitioners : Mr.Shrawan Dogra, Advocate General with Mr. Anup Rattan, Mr.Romesh Verma, Additional Advocate Generals and Mr. J.K. Verma, Deputy Advocate General.
For the Respondents : Mr.Dilip Sharma, Senior Advocate with Mr.Manish Sharma, Advocate.
Tarlok Singh Chauhan, Judge.
The short question involved in this writ petition is as to whether the learned H.P. State Administrative Tribunal (for short 'Tribunal') could have without striking down the impugned provision in the addendum (Annexure A-2) for selection of Resident Doctors in Medical Colleges of Himachal Pradesh passed an order which infact has the consequences of striking down the provision itself.
2. The facts as necessary for the disposal of this petition are that the respondents herein filed an Original Application before Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 19:56:51 :::HCHP 2the learned Tribunal claiming therein that they were in-service General Duty Officers (GDOs) and had been granted admission in .
PG Courses in the specialities of Anaesthesia, Obstetrics, Gynaecology, Radio-Diagnosis and Orthopaedics against the quota reserved for the Government Doctors. The respondents were infact of aggrieved by the imposition of third proviso to para 5.2.2 of the Notification dated 25.07.2014 which provided for a mandatory rt peripheral service of two years on Postgraduate GDO candidates opting for Senior Residency in their own speciality and filed Original Application before the learned Tribunal claiming therein the following reliefs:-
"(i) That the impugned condition of mandatory peripheral service of two years imposed vide 3rd proviso to para 5.2.2 of notification dated 25.7.2014, Annexure A-3, only on Postgraduate GDO candidates opting for Senior Residency in their own specialty may kindly be struck down as violative of Articles 14 and 16 of the Constitution of India.
(ii) That the applicants may be held eligible for applying for the post(s) of Senior Resident in their own respective specialty pursuant to notification at Annexure A-5, after striking down the impugned condition of mandatory peripheral service prescribed in Annexure A-3, with all consequential benefits."
3. We, at this stage, are not concerned with the relative merits of the case, lest it prejudices either of the parties to the lis.
As per the addendum dated 26.09.2012 (Annexure A-2) to the policy for selection of Resident Doctors in Medical Colleges in Himachal Pradesh (for short 'Policy'), the following method for selection was provided for :-
::: Downloaded on - 15/04/2017 19:56:51 :::HCHP 3"5.2. METHOD OF RECRUITMENT:
5.2.2. 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. of Resident who have served in the peripheral health institutions of the State of Himachal rt 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."
4. However, the State Government thereafter issued a notification dated 08.07.2014 (Annexure A-3) and the above provision was modified as under:-
"5.2 (Method of recruitment):
5.2.2. The GDO category shall include the doctors appointed on regular or contract basis by the Government of Himac hal Pradesh.
Provided that only those GDO's, whether appointed on regular or on contract basis, shall be eligible for selection as Sr. Residents 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.
Provided further that two years mandatory peripheral service be exempted for Post Graduate doctors for doing Sr. Residency in Super-speciality Departments of Government Medical Colleges of the State and such GDOs will be ::: Downloaded on - 15/04/2017 19:56:51 :::HCHP 4 awarded three years teaching experience in their own speciality."
.
5. The aforesaid amendment in para 5.2 of the policy came to be challenged by the respondents on the ground that the same seeks to accord two-fold benefit to in-service GDOs having of Postgraduate Degrees in specialities of Surgery and Medicine alone by relaxing two years peripheral service qua them and in addition to rt that awarding of "three years teaching experience in their own speciality", which by necessary implication would be denied to them.
Thus, they would be discriminated vis-à-vis same class in-service GDOs having acquired PG Degrees in their disciplines.
6. In response to the Original Application, the petitioners herein placed reliance upon the judgment rendered by this Court in Dr.Babu Ram Thakur and others versus State of Himachal Pradesh and others (CWP No.4665 of 2012 decided on 22.08.2012) wherein the policy of the State Government regarding grant of relaxation of two years peripheral service for selection as Senior Residents in the State Government Medical Colleges was upheld to contend that the Original Application is without merit and, therefore, deserves to be dismissed.
7. The learned Tribunal distinguished the judgment in Dr.Babu Ram Thakur's case (supra) by holding that in that case there was conflict of interest between two distinct classes of in-
service GDOs and direct recruits and, therefore, the same was distinguishable and not applicable to the facts of the case.
::: Downloaded on - 15/04/2017 19:56:51 :::HCHP 58. It would be noticed that the learned Tribunal without quashing the impugned provision i.e. para 5.2.2. of the policy .
allowed the Original Application in the following terms:-
"9. As anywhere else in the country, there are two distinct wings of medical profession in the Government sector and both these wings should be sufficiently and suitably manned of by medical professionals. However, the volume of the two is not in equal proportion as General Health Service require a large number of medical professionals, where number of rt such professionals in the Medical Education Service would always be on the lower side.
10. As already noticed, as far as the purpose behind modification of the policy for providing sufficient pool for running Super Specialities is concerned, there can be no two opinions about the same. However, in the long run the benefit bestowed upon in-service GDOs from the fields of Surgery and Medicine by taking their services in the Super Specialities, referred to hereinabove, would ultimately be beneficial to them for induction in the Medical Education Service at the entry level of Assistant Professor. To the contrary, in-service GDOs belonging to the categories of the applicants would be bereft of that benefit.
11. Here, it is also pertinent to observe that in non-clinical fields, such as (1) Anatomy (2) Physiology (3) Pharmacology (4) Pathology (5) Microbiology and (6) Biochemistry, there is no requirement of two years peripheral service from the very beginning. It is because medical professionals belonging to these Specialities are not required for providing clinical services in the peripheral health institutions on a big scale. To that extent, no one has any dispute.
12. According to the applicants, though there are no Super Specialities in their respective fields, yet the fact remains that they can man the positions of Senior Residents in their respective fields, after which they also become eligible for entry in Medical Education Service as Assistant ::: Downloaded on - 15/04/2017 19:56:51 :::HCHP 6 Professor. However, according to the respondents, once an in-service GDO with PG degree joins as a Senior Resident, .
his endeavour would always be to join teaching cadre in Medical Colleges and his services would not be available in the peripheral health institutions in the State, but that is equally true about Senior Residents belonging to the fields of Surgery and Medicine joining Super Specialities. However, of to offset the resultant shortage of in-service GDOs with PG degrees in the peripheral health institutions, the shortfall would always be met from in-service GDOs pursuing PG rt courses against their quota after completion of their courses in the Medical Colleges every year.
13. In view of the above, we are convinced that in order to ensure that a level playing field is provided to in-service GDOs with PG degrees irrespective of their specialities to achieve the right to equality postulated under Article 14 of the Constitution, it shall be expedient and in the interest of justice that the respondents consider exempting two years peripheral service in favour of in-service GDOs across the board. Ordered accordingly.
14. The original application stands disposed of in the above terms."
9. It cannot be disputed that so long as the conditions contained in the policy are not quashed, the same would have defacto operation and have, therefore, to be given effect to. It is more than settled that once the policy is in place, the same would operate and has to be followed in its letter and spirit with all its rigors and it cannot be whittled down or rendered nugatory by a judicial interpretation and will have a binding effect unless and until the same is struck down as being illegal, arbitrary or violative of Articles 14 and 16 of the Constitution of India or the like.
::: Downloaded on - 15/04/2017 19:56:51 :::HCHP 710. Therefore, what was required of the learned Tribunal was to have rendered a positive finding regarding the .
legality/illegality of the provisions i.e. para 5.2.2 of the policy and unless and until a positive finding regarding the impugned provision was not rendered, the petitioners herein could not have been of directed to consider exempting of two years peripheral service in favour of in-service GDOs that too across the board.
11. rt In view of the aforesaid discussion, we have no other option but to set aside the impugned judgment passed by the learned Tribunal with a direction to decide the same afresh in accordance with law. Ordered accordingly. The parties are left to bear their own costs. Pending application, if any, also stands disposed of.
12. The parties through their counsel are directed to appear before the learned Tribunal on 22.03.2016.
(Mansoor Ahmad Mir), Chief Justice.
(Tarlok Singh Chauhan), March 19, 2016. Judge.
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