Between vs Dr. Dinesh on 24 November, 2021

[Cites 12, Cited by 0]

Himachal Pradesh High Court

Between vs Dr. Dinesh on 24 November, 2021

Author: Sabina

Bench: Sabina

1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 24th DAY OF NOVEMBER, 2021 BEFORE .

HON'BLE MR. JUSTICE MOHAMMAD RAFIQ CHIEF JUSTICE & HON'BLE MS. JUSTICE SABINA LETTERS PATENT APPEAL Nos.67, 68, 136, 140 to 143 of 2021, CIVIL WRIT PETITION Nos. 6504, 6534 & 6956 of 2021.

1. LPA No.67 of 2021 Between:-

DR. CHANDER SHEKHAR, SON OF SH. NEK RAM, RESIDENT OF VILLAGE DAKRI, P.O. AND TEHSIL GHUMARWIN, DISTRICT BILASPUR, H.P. PRESENTLY POSTED AS MEDICAL OFFICER SPECIALIST AT SH. LAL BAHADUR SHASTRI GOVERNMENT COLLEGE NERCHOWK, DISTRICT MANDI, H.P. ......APPELLANT (BY SH. NEERAJ K. SHAMRA, ADVOCATE) AND

1. STATE OF HIMACHAL PRADESH THROUGH PRINCIPAL SECRETARY (HEALTH) TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-2.

2. SPECIAL SECRETARY HEALTH, TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-2.

3. THE DIRECTOR HEALTH AND FAMILY WELFARE, HIMACHAL PRADESH, SHIMLA-9.

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4. MEDICAL SUPERINTENDENT, ZONAL HOSPITAL MANDI, HIMACHAL PRADESH.

5. MANOJ SHARMA SON OF SH. DHANI RAM SHARMA R/O VILLAGE KUTHERA PO BHARARI .

TEHSIL GHUMARWIN DISTRICT BILASPUR HP.

......RESPONDENTS (SH. AJAY VAIDYA, SENIOR ADDITIONAL ADVOCATE GENERAL, FOR R-1 TO R-4, SH. B.C. NEGI, SENIOR ADVOCATE WITH MR. NITIN THAKUR, ADVOCATE FOR R-5) 2. LPA No.68 of 2021 Between:-

DR. CHANDER SHEKHAR, SON OF SH. NEK RAM, RESIDENT OF VILLAGE DAKRI, P.O. AND TEHSIL GHUMARWIN, DISTRICT BILASPUR, H.P. PRESENTLY POSTED AS MEDICAL OFFICER SPECIALIST AT SH. LAL BAHADUR SHASTRI GOVERNMENT COLLEGE NERCHOWK, DISTRICT MANDI, H.P. ......APPELLANT (BY SH. NEERAJ K. SHAMRA, ADVOCATE) AND

1. STATE OF HIMACHAL PRADESH THROUGH PRINCIPAL SECRETARY (HEALTH) TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-2.

2. THE DIRECTOR HEALTH AND FAMILY WELFARE, HIMACHAL PRADESH, SHIMLA-9.

3. PRINCIPAL LAL BAHADUR SHASTRI GOVERNMENT COLLEGE NERCHOWK, DISTRICT MANDI, H.P.

4. DR. JITENDER THAKUR, SON OF SH. SOHAN SINGH RESIDENT OF VILLAGE KHANOUR PO SEOH, TEHSIL DHARAMPUR DISTRICT MANDI HP.

......RESPONDENTS ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 3 (SH. AJAY VAIDYA, SENIOR ADDITIONAL ADVOCATE GENERA, FOR R-1 TO R-3, SH. SURINDER SAKLANI, ADVOCATE FOR R-4) .

3. LPA No.136 of 2021

Between:-

1. STATE OF HIMACHAL PRADESH THROUGH SECRETARY (HEALTH) TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-2.

2. SPECIAL SECRETARY HEALTH, TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-2.

3. THE DIRECTOR HEALTH SERVICES, HIMACHAL PRADESH, SDA COMPLEX KASUMPTI SHIMLA-9.

4. MEDICAL SUPERINTENDENT, ZONAL HOSPITAL MANDI, HIMACHAL PRADESH.

......APPELLANTS (BY SH. AJAY VAIDYA, SENIOR ADDITIONAL ADVOCATE GENERAL) AND DR. MANOJ SHARMA, SON OF SHRI DHANI RAM SHARMA, PERMANENT RESIDENT OF VILLAGE KUTHERA AND POST OFFICE BHARARI, TEHSIL GHUMARWIN AND DISTRICT BILASPUR, HIMAHCAL PRADESH, PRESENTLY WORKING AS MO SPECIALIST (MS GENERAL SURGERY), ZONAL HOSPITAL, MANDI, HIMACHAL PRADESH.

......RESPONDENTS 4. LPA No.140 of 2021 Between:-

1. STATE OF HIMACHAL PRADESH, THROUGH ITS SECRETARY (HEALTH) TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-2.

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2. THE DIRECTOR HEALTH AND FAMILY WELFARE, HIMACHAL PRADESH, SHIMLA-9.

3. PRINCIPAL LAL BAHADUR SHASTRI GOVERNMENT COLLEGE NERCHOWK, .

DISTRICT MANDI, H.P. ......APPELLANTS (BY SH. AJAY VAIDYA, SENIOR ADDITIONAL ADVOCATE GENERAL) AND JITENDER THAKUR SON OF SHRI SOHAN SINGH, AGED 35 YEARS. RESIDENT OF VILLAGE KHANOUR, POST OFFICE SEOH, TEHSIUL DHARAMPUR, DISTRICT MANDI, HIMACHAL PRADESH PRESENTLY POSTED AS SENIOR RESIDENT AT LAL BAHADUR SHASTRI GOVERNMENT MEDICAL COLLEGE, NER CHOWK, DEPARTMENT OF MEDICINE. DISTRICT MANDI, HP.

......RESPONDENT DR. CHANDER SHEKHAR, SON OF SH. NEK RAM, RESIDENT OF VILLAGE DAKRI, P.O. AND TEHSIL GHUMARWIN, DISTRICT BILASPUR, H.P. PRESENTLY POSTED AS MEDICAL OFFICER SPECIALIST AT SH. LAL BAHADUR SHASTRI GOVERNMENT COLLEGE NERCHOWK, DISTRICT MANDI, H.P. ...PROFORMA RESPONDENT 5. LPA No.141 of 2021 Between:-

1. STATE OF HIMACHAL PRADESH, THROUGH ITS PRINCIPAL SECRETARY (HEALTH) TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA- 171002.

2. SPECIAL SECRETARY (HEALTH) TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-171002.

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3. THE DIRECTOR. HEALTH SERVICES, HIMACHAL PRADESH. SDA COMPLEX KASUMPTI, SHIMLA-171009.

4. CHIEF MEDICAL OFFICER, UNA, .

DISTRICT UNA, HIMACHAL PRADESH.

......APPELLANTS (BY SH. AJAY VAIDYA, SENIOR ADDITIONAL ADVOCATE GENERAL) AND DR. NISHANT NADDA SON OF SHRI SURESH NADDA, AGED 36 YEARS. RESIDENT OF HOUSE NO. 12, CINEMA COLONY, BILASPUR, DISTRICT BILASPUR, HIMACHAL PRADESH AT PRESENT POSTED AS SENIOR RESIDENT.

DEPARTMENT OF MEDICINE. INDIRA GANDHI MEDICAL COLLEGE, SHIMLA.

......RESPONDENT 6. LPA No.142 of 2021 Between:-

1. STATE OF HIMACHAL PRADESH, THROUGH ITS PRINCIPAL SECRETARY (HEALTH) TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-2.

2. SPECIAL SECRETARY (HEALTH) TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-2.

3. THE DIRECTOR, HEALTH SERVICES, HIMACHAL PRADESH. SDA COMPLEX KASUMPTI, SHIMLA-171009.

4. THE PRINCIPAL, IGMC, SHIMLA, HIMACHAL PRADESH.

......APPELLANTS (BY SH. AJAY VAIDYA, SENIOR ADDITIONAL ADVOCATE GENERAL) ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 6 AND SOHIL CHAUHAN SON OF SHRI RAMESH CHAUHAN, .

AGED ABOUT 36 YEARS, RESIDENT OF C/O SO-SHERIL VILLA, OPPOSITE HOTEL EAST END PANTHAGHATI, KASUMPTI. SHIMLA, HIMACHAL PRADESH.

PRESENTLY WORKING AS SENIOR RESIDENT IN DEPARTMENT OF GENERAL SURGERY, IGMC SHIMLA.

......RESPONDENT 7. LPA No.143 of 2021

1. Between:-

STATE OF HIMACHAL PRADESH, THROUGH ITS ADDITIONAL CHIEF SECRETARY (HEALTH) TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-171002.

2. THE DIRECTOR. HEALTH SERVICES, HIMACHAL PRADESH-171009.

3. DIRECTOR, ALL INDIA INSTITUTE OF MEDICAL SCIENCES, NEW DELHI.

......APPELLANTS (BY SH. AJAY VAIDYA, SENIOR ADDITIONAL ADVOCATE GENERAL) AND DR. MAHENDER SINGH RANA, AGED 34 YEARS, S/O SHRI BAKSHI RAM RANA, VILL. SURAJPUR BARI, TEHSIL SARKAGHAT, DISTT. MANDI.

......RESPONDENT 8. CWP No.6504 of 2021 Between:-

1. DR. MAHENDER SINGH RANA S/O SH. BAKSHI RAM RANA, VILLAGE BARCHHWAD, TEHSIL SARKAGHAT, DISTRICT MANDI (H.P.).

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2. DR. NISHANT NADDA, S/O SH. SURESH NADDA, HOUSE NO. 12, CINEMA COLONY, BILASPUR, DISTRICT BILASPR, (H.P.).

......PETITIONERS (BY SH. DILIP SHARMA AND SH. SHRAWAN DOGRA, SENIOR ADVOCATES WITH SH. MANISH SHARMA, AND SH. BHARAT THAKUR, ADVOCATES) AND

1. STATE OF HIMACHAL PRADESH, THROUGH SECRETARY (HEALTH) TO THE GOVT.

OF HIMACHAL PRADESH, SHIMLA-171002.

2. DIRECTOR, HEALTH SERVICES, HIMACHAL PRADESH-171009.

3. MEDICAL COUNCIL OF INDIA, THROUGH ITS SECRETARY, NEW DELHI.

......RESPONDENTS (SH. AJAY VAIDYA, SENIOR ADDITIONAL ADVOCATE GENERAL, FOR R-1 & R-2, SH. B.C. NEGI, SENIOR ADVOCATE WITH SH. PARVESH NEGI, ADVOCATE, FOR R-3)

9. CWP No. 6534 of 2021.

Between:-

Dr. AJAY MODGIL, MD, S/o Lt. SH. S.C.SHARMA, WARD No.4, VIKAS NAGAR, TEHSIL AND DISTT. UNA, H.P. ......PETITIONER (BY SH. B.C. NEGI, SENIOR ADVOCATE WITH SH. SHIVANK SINGH PANTA, ADVOCATE) AND

1. STATE OF HIMACHAL PRADESH, THROUGH SECRETARY (HEALTH) TO THE GOVT. H. P., SHIMLA-2.

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2. SPECIAL SECRETARY (HEALTH) TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-2.

.

3. THE DIRECTOR, HEALTH SERVICES, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVT. OF H.P., SHIMLA-9.

......RESPONDENTS (BY SH. AJAY VAIDYA, SENIOR ADDITIONAL ADVOCATE GENERAL) Between:-

DR. MANISH SHARMA 10. CWP No.6956 of 2021 SON OF SHRI N K SHARMA, AGED ABOUT 42 YEARS, RESIDENT OF VPO KUTHAR BEET TEHSIL HAROLI DISTRICT UNA, HIMACHAL PRADESH, PRESENTLY WORKING AS MEDICAL OFFICER SURGEON AT REGIONAL HOSPITAL UNA.

......PETITIONER (BY SH. B.C. NEGI, SENIOR ADVOCATE WITH SH. NITIN THAKUR, ADVOCATE) AND

1. STATE OF HIMACHAL PRADESH, THROUGH ITS PRINCIPAL SECRETARY (HEALTH) TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-2.

2. SPECIAL SECRETARY (HEALTH) TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-2.

3. THE DIRECTOR, HEALTH SERVICES, HIMACHAL PRADESH, SDA COMPLEX KASUMPTI, SHIMLA-9.

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4. THE CHIEF MEDICAL OFFICER, DISTRICT UNA, HIMACHAL PRADESH.

......RESPONDENTS .

(BY SH. AJAY VAIDYA, SENIOR ADDITIONAL ADVOCATE GENERAL) Reserved on : 16/17.11.2021.

Decided on : 24.11.2021.

These matters coming on for admission this day, Hon'ble Mrs. Justice Sabina, delivered the following:

                       r     JUDGMENT

    1)          Vide this judgement, above mentioned Letters Patent

Appeals as well as writ petitions, would be disposed of as the issue involved in all these cases is the same.

2) The issue involved in all these cases relates to compulsory bonds to be executed for admission to Post Graduate Medical Courses and Super Specialty Courses. Writ petitions were filed by the petitioners challenging the mandatory provisions of service provided under Clauses 6.1 and 11.1.2 of the Post Graduation/Super Specialty Policy for Regulating Admission to various Post Graduation and Super Specialty Courses in Medical Education 2019, applicable in the State of Himachal Pradesh (hereinafter referred to as PG/Super Specialty Policy).

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3) The undisputed facts, relevant for adjudication of the case, are that seven Government Medical Colleges and one private .

medical college in the State impart medical education. State of Himachal Pradesh has formulated the PG/Super Specialty Policy for regulating admission to various post graduation and super specialty courses in medical education. Incentive has been provided to the doctors for pursuing post graduation within the State as well as outside the State. Sponsorship has also been provided by the State to the desirous General Duty Officers (GDOs), who want to pursue post graduation or super specialty courses, within the State or outside the State. Similarly, direct candidates have also been provided the facility of sponsorship to pursue post graduation or super specialty courses, within the State or outside the State.

Earlier, a policy had been framed by the State vide Notification dated 3rd October, 2017. So far as the policy dated 3rd October, 2017 is concerned, the same reads as under:

"Government of Himachal Pradesh Department of Medical Education File No: HFW-B(F)4-9/2017 dated: Shimla the 03/10/2017 Notification In continuation of this Department's Notification No.: HFW- B(B(14-3/2009-Loose dated 20.03.2017 the Governor, Himachal Pradesh is pleased to notify a policy for sponsoring General Duty Officers for doing PG(MD/MS) Degree/Diploma & Master Courses outside the State as per the ANNEXURE -'A'.

The Governor, Himachal Pradesh in suppression of all previous Policies notified for sponsoring GDOs for doing Super specialty DM/MCh ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 11 Courses, DNB Courses within and outside the State is pleased to notify a fresh policy in this behalf as per the ANNEXURE-'B' and ANNEXURE-'C'.

.

By order, (Onkar C. Sharma) Principal Secretary (Health) to the Government of Himachal Pradesh Endst. No.: As above dated: Shimla-2, the 03/10/2017 Copy forwarded for information and necessary action to:-

1. The Special Secretary (GAD) to the Government of Himachal Pradesh w.r.t. item No.-156, Cabinet meeting dated 18.09.2017.

2. The Deputy Secretary (Health) to the Government of Himachal Pradesh.

3. The Director Health Services, Himachal Pradesh, Shimla-9.

4. Director, Medical Education and Research, Himachal Pradesh, Shimla-9.

5. Director, Dental Health Services, Himachal Pradesh, Shimla-9.

6. The Principal, IGMC, Shimla, Himachal Pradesh

7.

8.

The Principal, Dr. RPGMC, Kangra at Tanda, Himachal Pradesh The Principal, Dr. YSPGMC, Sirmour at Nahan, Himachal Pradesh

9. The Principal, Pt. JLNGMC, Chamba, Himachal Pradesh

10. The Principal, Sh. LBSGMC, Ner Chowk, Mandi, Himachal Pradesh

11. The Principal, HP Government Dental College, Shimla-1.

12. File No.:HFW-B(B)14-3/2009-Loose w.r.t. this Department's Notification dated 20.03.2017. The original file number of this Notification is HFW-B(B)12-4/2013-I(Loose).

13. Guard File.

(Pankaj Rai) Special Secretary (Health) to the Government of Himachal Pradesh ANNEXURE-'A' POLICY FOR PURSUING PST GRADUATE (MD/MS) DEGREE/DIPLOMA AND MASTER COURSES OUTSIDE THE STATE;-

(A) SPONSORED SEATS:

(1) ELIGIBILITY AND SELECTION CRITERIA IN RESPECT OF GDOs- 1.1 The GDOs shall be entitled for grant of 'No Objection Certificate' for pursuing PG degree/PG diploma course on completion of three years regular/contract service in the State. The period of three years shall be reckoned from the date of actual joining on the post upto the date of issuing of NOC.

1.2 In case, the GDO seeks NOC for the course from the Government/private institute duly recognized by MCI, outside the State, the same shall be issued as per the requirement of ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 12 the Prospectus of that institution subject to the condition that NOC will not be given before three years of service notwithstanding the requirement of lesser service in the .

Prospectus.

. 2. FOR FIRST PG COURSE The GDOs who have been issued NOC, on their selection for their first course shall be governed with the following conditions:-

2.1 The regular GDOs shall be treated on duty for the actual duration of their respective course and shall be paid their full pay and allowances. 3(b) 2.2 The contractual GDOs shall be treated on duty for the actual duration of their respective course and shall be paid their contractual emoluments, without any incentives.

. 3 FOR SECOND PG COURSE:-

.

The GDOs who have been issued NOC, on their selection for their second course shall be governed with the following conditions:

. 3.1 The GDOs who have completed PG Degree in one specialty will not be granted NOC for PG Degree in other specialty unless he/she has served the State for at least five years after completion of the flrst PG Degree.

. 3.2 The GDOs who have completed PG Diploma in one specialty will not be granted NOC for PG Diploma in other specialty unless he/she has served the State for at least three years after completion of first PG Diploma.

. 3.3 The GDOs who have completed PG Diploma in one specialty will not be granted NOC for PG Degree in same or any other specialty unless he/she has served the State, at least for a period of three years after completion of first PG Diploma.

. 3.4 The GDOs who have completed DNB in one specialty will not be granted NOC for PG Degree in same or any other specialty unless he/she has servecl the State, at least for a period of five years after completion of DNB Course.

. 3.5 GDOs for their second PG Course, will have to avail study leave or the leave of kind due and admissible, as the case may.be, and will be entitled for leave salary.

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. 4. REQUIREMENT OF BOND BY WAY OF BANK GUARANTEE:- 4.1 The GDOs (regular/contract) shall have to furnish a bond to serve the State at least for five years (in case of PG Degree course) and atleast for three years (in case of PG Diploma course) after .

completion of their respective courses. The Bond shall be in the form of Bank guarantee of Rs.10 Lakhs for PG degree and 7 Lakhs for PG diploma to be executed prior to joining the said course and no one shall be relieved to join the course without execution of the bond.

4.2 In case the GDO is selected for doing second PG course shall have to again furnish a bond to serve the State similar to 4.1 above.

4.3 In case the GDO is selected for doing second PG course during the bonded period of service, he/she shall have to serve the balance period of earlier bonded service in addition to the bonded service of second PG course as the duration of second PG course shall be excluded from the bonded period of service. 4.4 In the event of the GDOs rescinding on the terms of the bond, the State Government shall have the right to forfeit the amount of Bank Guarantee with a simultaneous request for cancellation of registration of their Degree course to be made to the MCI.

. 5. FOR GDOs LEAVING COURSE MIDWAY:-

. 5.1 The GDOs who after being granted NOC as a sponsored candidate leave the PG degree/diploma course midway shall stand debarred to re-appear as a sponsored candidate in the PG degree/diploma entrance.

. 5.2. The period of five years for the purpose of de-barring shall be reckoned from the date of leaving the course midway. . 5.3. (i) In case, the GDO who has been sponsored and treated as on duty (with full pay and allowances), leaves the course midway, the period involved shall be converted into/debited from regular leave standing at his credit on the date on which he proceeded to " join such course. In case of shortfall of leave, the recovery of amount of pay and allowances falling short of leave will be made/deducted from the salary of such GDO. . 5.3 (ii) In case, the GDO who has been granted study leave, leaves the course midway, the study leave availed by him/her ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 14 shall be converted into regular leave standing at his credit on the date on which the study leave commenced. The recovery of amount of leave salary, falling short of leave, will be recovered .

from the salary of GDO concerned.

. 6.1 In respect of Master in Public Health(MPH), or any other Master Course, if the institution and course is not recognized by the MCI, but the course to which NOC is sought, is found necessary for the Sate Health Services in larger public interest, the NOC shall be issued subject to fulfilling the minimum requirement of mandatory service of three years on regular/contract basis in the State.

. 6.2. The GDOs (regular/contract) doing Master Courses shall have to furnish a bond to serve the State at least for three years after completion of their respective courses. The Bond shall be in the form of bank guarantee of Rs.7 Lakhs, to be executed prior to joining ' the said course and no one shall be relieved to join the course without execution of the bond. . 6.3 In the event of the GDOs rescinding on the terms of the bond, the State Movement shall have the right to forfeit the amount of bank guarantee with a simultaneous request for cancellation of registration of their Degree Course to be made to the MCI.

. 6.4 In case of another Master Course or PG Degree after the first Master Course, the conditions specified at Sr. N0. 4 with all its sub-clauses above for the second PG Course shall prevail.

(B) UNSPONSORED SEATS:

1. The GDO working on contract basis shall have to resign on their selection against direct/open seats before joining such courses.

2. In case, a regular GDO wisheq to do a PG Degree/Diploma outside the State as a direct candidate, he/she will be granted leave of the kind due and admissible. The period not covered by any kind of leave shall be treated as dies-non without any interruption."

ANNEXURE-'B' POLICY FOR PURSUING SUPER SPECIALTY DM/MCH COURSES WITHIN AND OUTSIDE THE STATE ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 15 A. SPONSORED SEATS

1. Allocation of seats (for courses within the State only) 1.1 50% of such seats shall be filled up from amongst the bonafide .

Himachali Candidates (including in service GDOs as well as direct candidates) and remaining 50% shall be filled up from open competition. All the seats will be filled up on merit. Note:- In case, if seat(s) falling in the share of any of the group remained unfilled, the same shall be filled in from the eligible candidates of another group and vice versa.

1.2 All regular GDOs serving with the Government of Himachal Pradesh would be eligible for grant of No Objection certificate, subject to fulfilling the eligibility conditions as laid down in para 2 and on selection, would be eligible to join such courses. 2 ELIGIBILITY All GDOs who have done Post Graduation during service shall be eligible for pursuing DM/Mch courses without any condition of serving the State after Post Graduation. However, GDOs who join HP Health Services directly after completion of Postgraduate Degree course will have to serve the State for a period of atleast Two years, for becoming eligible for DM/MCh Super Specialty courses as a sponsored candidate.

3 FOR FIRST DM/MCh COURSE The GDOs who have been issued NOC, on their selection for their first course shall be treated on duty for the actual duration of their respective course and shall be paid their fuIl pay and allowances.

4 REQUIREMENT OF BOND BY WIAY OF BANK GUARANTEE 4.1 As the State Government incurs substantive expenditure on each GDO doing DM/ MCh Super Specialty Course and also pays full pay and allowances during the course, there will be a bond condition to serve the state at least for seven years after doing DM/ MCh Super Specialty Course. The Bond shall be in the form of bank guarantee of Rs. 15 lakhs to be executed prior to joining the said course and no one shall be relieved without execution of the bond.

4.2 In the event of the GDOs rescinding on the terms of the bond, the State Government shall have the right to forfeit the amount of bank guarantee. Simultaneously, request for cancellation of registration of their DM/ MCh Super Specialty Course shall be made to MCI. 4.3 In case the GDO is selected for doing DM/MCh course during the bonded period of service, he/she shall have to serve the balance period ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 16 of earlier bonded service in addition to the bonded service of DM/MCh course as the duration of DM/MCh course shall be excluded from the bonded period of service.

5 FOR LEAVING THE COURSE MIDWAY . 5.1 The GDOs who leave the DM/ MCh Super Specialty Course midway either within the State or outside the State of HP, shall stand debarred to re-appear as a sponsored candidate for pursuing DM/ MCh Super Specialty Course for next five years, for both within the State and outside the State of Hp.

. 5.2. The period of five years for the purpose of de-barring shall be reckoned from the date of leaving the course midway.

. 5.3. In case, the GDO who has been sponsored and treated as on duty (with full pay and allowances), leaves the course midway, the period involved shall be converted into/debited from regular leave standing at his credit on the date on which he proceeded to join such course. In case of shortfall of leave, the recovery of amount of pay and allowances falling short of leave will be made. 6 UNSPONSORED SEATS:

In case, a regular GDO wishes to do a DM/MCh course as a direct candidate, he/she will be granted leave of kind due and admissible."

4) The above said policy has now been superseded by new notification dated 27th February, 2019 (here-in-after referred to as ' the 2019 Policy') and the relevant clauses of the policy are reproduced here-in-below:-

"Government of Himachal Pradesh Department of Health & Family Welfare File No. HFW-B(F)4-9/2017-II dated: Shimla-2, the 27/02/2019 In supersession of all previous notifications issued in this regard, the Governor of Himachal Pradesh is pleased to notify PG/Super specialty Policy for regulating admissions to various Post Graduation and Super Specialty Courses in Medical Education applicable in the State of Himachal Pradesh as under:--

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1. Short Title.--This policy may be called the 'Policy for regulating admissions to various Post Graduation and Super Specialty courses in Medical Education applicable in the State of Himachal .

Pradesh' in short 'PG/Super Specialty Policy'.

xxx......... xxx.... xxx...

5. Incentive/NOC/Sponsorship for pursuing Post Graduation:

5.1 Incentive for pursuing Post Graduation within the State through NEET-PG :

5.1.1 There shall be no requirement for a NOC to appear in NEET-

PG for any of the GDO candidates.

5.1.2 There shall be requirement of an Incentive Certificate for availing the incentive for serving in the State as a GDO provided that such Incentive Certificate shall be issued to only those GDO who have completed at least one year of uninterrupted continuous service without any break or unauthorized absence on the date of declaration of result of NEET-PG. Further provided that this Incentive Certificate shall be valid only for appearing in the State Quota Counselling.

5.1.3 The application for issuance of Incentive Certificate shall be made by the desirous GDO to the concerned Chief Medical Officer under whom he/she is currently serving. The application shall be made on a prescribed format which shall be notified by the DHS separately. The concerned Chief Medical Officer shall verify the service particulars of the GDO from the maintained service record and send the Incentive Certificate for counter signature of the DHS.

5.1.4 The GDOs shall be entitled for incentive in terms of percentage of marks obtained in NEET-PG based on their services rendered in various field postings as per ANNEXURE-A. The percentage incentive shall be computed on prorata basis for the actual duration of service rendered in a particular field posting as per the following formula:

    Incentive percentage                                            prescribed incentive for
    for a particular field   = Duration served (in days)   x         particular institution
           posting                      365                              (Annexure-A)

In case a particular GDO has been posted at one particular station but he is deputed for some period to another station, the actual ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 18 duration served at a particular field posting will be taken into account for the calculation of incentive. This incentive shall be available to only those GDOs who are in the active service of the State in a continuous .

manner and for the purpose of computing the incentive, the present continuous service shall be taken into account; meaning thereby, any doctor who has served as a GDO in the past but has subsequently resigned from GDO ship shall not be eligible to avail benefit of this incentive on the basis of any previous service. Similarly, if he/she subsequently joins GDO ship again, the incentive will be calculated taking into consideration the latest period of service reckoned from the date when he/she is in continuous service without any break. This incentive will be subject to maximum of 30% in terms of judgment delivered by the Hon'ble Supreme Court of India on 16th August, 2016 in Civil Appeal No. 8047/2016--State of U.P. & Ors. Versus Dr. Dinesh Singh Chauhan and as per Medical Council of India Post Graduate Medical Education Regulations. 5.1.5 For the purpose of computation of incentive by the DHS, the cut off date shall be the date of declaration of NEET-PG result. 5.1.6 The date schedule for issuance of such Incentive Certificate shall be notified by the DME either as a part of Prospectus or separately.

5.1.7 No application for issuance of Incentive Certificate shall be entertained after the expiry of period mentioned in notification as per clause 5.1.6. If any GDO fails to make application before the expiry the last date prescribed for the purpose it shall be presumed that he/she is not interested in availing the benefit of the incentive.

5.1.8 The incentive applicable for each field posting for a particular candidate shall be calculated, summed up and rounded off to three decimal points by the DHS. The DHS shall compile the list of all candidates who have applied for issuance of Incentive Certificate alongwith their NEET-PG roll number and communicate the entitled incentive (till three decimal points) in respect of each candidate to the DME for drawing up a combined merit list in respect of GDO and direct candidates. The individual original Incentive Certificate shall be filed in the personal record of the GDO.

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5.1.9 No incentive shall be applicable for those GDOs who are appearing for the All India counseling.

5.2 NOC/Sponsorship for pursuing Post Graduation against .

sponsored quota seats of autonomous institutions :

5.2.1 NOC shall be issued only to GDOs desirous of pursuing Post Graduation from the autonomous institutions for appearing in their entrance examination against the sponsored quota of the autonomous institutes subject to the following conditions:--

(a) GDO should be regular and should have three years of uninterrupted continuous services without any break or unauthorized absence. His/her service record to this effect should have been verified by the concerned Chief Medical Officer as per maintained service record.

Such verification shall be obtained by the concerned GDO from the Chief Medical Officer before making application to the DHS for NOC for appearing in examination.

(b) NOC will not be given before three years of service as required at 5.2.1(a) notwithstanding the requirement of lesser service in the prospectus of any particular autonomous institution.

5.3 Such candidates who have been granted NOC/Sponsorship for appearing in the entrance examination of autonomous institutions subject to conditions as laid down in 5.2.1 and are subsequently selected in the institutions shall apply to the DHS for relieving along with the result card. The DHS shall then complete all the formalities as prescribed in clause 6 and shall relieve the candidate only after furnishing of bond documents.

5.4 Sponsorship :

5.4.1 After the counseling, the GDOs desirous of pursing Post Graduation within or outside the State shall apply for sponsorship to the DHS. The pre-requisites for issuance of sponsorship certificate shall be the following:

5.4.1.1 For Post Graduation within the State : (a) The candidate should have applied and should have been issued Incentive Certificate prior to State counseling. (b) Fulfilment of all formalities as per clause-6 ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 20 5.4.1.2 For Post Graduation outside the State through NEET-PG/ unsponsored quota of autonomous institutions:

(a) No GDO shall be sponsored for Post Graduation outside the .

state through NEET-PG or against non-sponsored quota of autonomous institutions.

(b) Such GDOs who secure admissions in Post Graduation courses outside the State through NEET-PG or against unsponsored quota of autonomous institutions may avail leave of kind due including Study Leave/ Extra Ordinary Leave, as may be otherwise admissible as per CCS (Leave) Rules.

(c) Such GDOs who secure admissions in Post Graduation courses outside the State through NEET-PG or against unsponsored quota of autonomous institutions shall apply to the DHS for relieving. If the candidate has sufficient leave of kind due as per clause (b) above, the same may be recommended to the Government subject to the conditions as per the leave being granted including bond period for Study Leave. If sufficient leave is not admissible as may be required for duration of the Post Graduation course, the GDO will have to resign if he/she wants to pursue the post graduation and accordingly his/her case shall be sent to the Government by the DHS alongwith recommendations.

5.5 If any GDO joins Post Graduation within or outside the state through NEET-PG exam/ Autonomous Institution Entrance Examination as a direct candidate without due resignation/permission, in case of contractual GDO his/her services shall be deemed terminated and recovery shall be made as per terms of contract agreement and in case of regular GDO candidate, disciplinary proceedings shall be initiated besides writing to the concerned Head of Institute for cancellation of the admission.

6. Terms and conditions of Bond for Post Graduation :

6.1 As the Government incurs substantive expenditure on each candidate for doing Post Graduation and also pays them full pay along with all allowances and seniority during the course, every GDO (regular/contract) who have been sponsored to pursue Post Graduation within the State in Government Medical/Dental Colleges shall have to ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 21 furnish a bond to serve the State for at least four years including mandatory first year of field posting after completion of their respective courses. Similarly, in case of GDOs sponsored for Post Graduation .

outside the State on sponsored quota seats of Autonomous Institutions, as the Government pays them full pay alongwith increments during the course and they are not even serving the state during the course, every such GDO (regular) shall have to furnish a bond to serve the State for at least five years including mandatory first year of field posting after completion of their respective courses. Since the direct candidate who pursues Post Graduation within the State in Government Medical/Dental Colleges on State/All India Quota stand on a different footing as they are not entitled to service benefits including full pay (with allowances and increments) and chances of regularisation to which their GDO counterparts are entitled; however, keeping in view the resources expended in their education by the government including payment of stipend, every such direct candidate shall have to furnish a bond to serve the State for at least two years including mandatory first year of field posting after completion of their respective courses.

6.2 The bond as per clause 6.1 shall be in the following form:

6.2.1 All the candidates as per clause 6.1 shall furnish a bond in the form of a legal undertaking to serve the State for prescribed period failing which the candidate shall have to pay the Rs. 40 Lacs to the State Government. The candidate shall also furnish an undated cheque from a scheduled bank amounting to Rs. 40 Lacs in the name of DHS. The DHS shall be at liberty to get the cheque encashed in event of violation of the bond conditions.

6.2.2 The candidates as per clause 6.1 shall also deposit their original bachelor degree with the DHS/DDHS (in case of GDOs) and DME (in case of direct candidates). The concerned issuing University/Institution shall be informed about such retention and the candidate shall be debarred from obtaining any duplicate degree. The original bachelor degree shall be released only after completion of the Bond Period or after deposition of the requisite amount and this shall be a part of the bond agreement.

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6.2.3 The candidates shall also furnish undertaking as a part of bond that they shall complete the course prescribed failing which they shall be liable to pay Rs. 10 lakhs to the State government for wastage of .

seat.

6.2.4 The prescribed format of the bond shall be as per Annexure- B. 6.3 It shall be the sole responsibility of DHS/DDHS to ensure the furnishing of such documents from each GDO candidate who is being sponsored and the sole responsibility of the Principal of concerned Medical College to ensure collection of these documents at the time of admission of a direct candidate to the course. Any dereliction of duty in this end shall make the concerned liable for action.

6.4 The custodian of these three documents-Bond as legal undertaking, undated cheque and the original Bachelor's Degree shall be DHS/DDHS (in case of GDOs) and DME (in case of direct candidates through Principals of respective colleges). Two months before the tentative completion of the Post Graduation in every Medical/Dental College, the DHS/DDHS shall conduct walk in interview in the concerned college and shall take options from all those candidates who are bonded to serve the State. Simultaneously, the DHS shall take over the custody of the documents including the Bond agreement, undated cheque and Original Bachelor degree in respect of direct candidates. The field posting orders of such candidates shall be issued by the DHS/DDHS within a month of declaration of PG results and successful clearing of the PG Exams subject to vacancy. The concerned Principals shall relieve the candidates (including GDOs and direct candidate) only after successful completion of the course with the direction to report to the DHS.

6.5 In no case, NOC will be granted for second Post Graduation Course/Super Specialty Course/Senior Residency to any candidate during the mandatory period of service of the State after first Post Graduation.

6.6 The following shall constitute a violation of the bond to serve the state as outlined in Clause 6.1.

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6.6.1 Failure to join the given field posting within 10 days of issuance of orders.

6.6.2 Putting in request for EOL/study leave/request for NOC .

during the mandatory period of service of the State.

6.6.3 Putting in request for Senior Residency within the mandatory first year of field posting.

6.7 In the event of a candidate violating the terms of bond as outlined in clause 6.6, the following actions shall be initiated by the DHS:

6.7.1 The salary paid to the candidate during sponsorship shall be recovered through due process of law.

6.7.2 The bond amount shall be recovered through due process of law. The cheque submitted by the candidate as a part of bond documents shall be en-cashed.

6.7.3 Initiation of disciplinary proceedings against the GDO candidate.

6.7.4 The original bachelor degree shall not be returned and endorsement shall be made to the concerned University thereof.

6.7.5 Cancellation of registration from the concerned Medical Council.

6.8 Exceptions.--The condition of bond shall not be applicable in case of Direct candidate in the following scenarios:

6.8.1 Those direct candidates who do not choose to take any stipend during the post graduation in the state. Such candidates shall furnish such option on a prescribed affidavit before the start of course.

6.8.2 Those direct candidate in whose case the Government/DHS/DDHS fails to issue any orders for field postings within a month of their clearing the PG Exams. However, the DHS/DDHS would be answerable to the Government for this lapse.

Xxx... xxx.... Xxxx....

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11. NOC and Sponsorship for pursuing Super Specialty courses:

11.1 NOC/Sponsorship for GDOs :

.

11.1.1 There shall be no requirement of NOC for appearing in the All India NEET Super Specialty or any other Entrance Examination to the Super Specialty Courses prescribed except for appearing against the Sponsored quota seats of the Autonomous Institutions.

11.1.2 Since the state needs the services of super specialists to improve the health care facilities within the state, the state would offer sponsorship to candidates who wish to pursue super-specialty courses, subject to following conditions:--

(a) GDO seeking sponsorship should be regular and should have completed the mandatory service of the State after Post Graduation as per clause 6.1 if the candidate had pursued post graduation earlier as a sponsored candidate.

(b) Those candidates who had initially joined as Direct Candidates but subsequently turned GDO or those who have joined GDO ship after doing Post Graduation from elsewhere shall be considered for sponsorship to Super specialty Courses subject to the condition that the GDO should be regular and should have served the State for at least three years including one year of mandatory field posting.

(c) In case of GDOs, who fulfil the conditions as laid down at clause (a) and (b) above, and have cleared NEET-SS or any such prescribed examination including unsponsored seats of Autonomous Institutions shall apply to the DHS for Sponsorship and shall be relieved after fulfilment of formalities as prescribed at Clause 11.3.

(d) In case of GDOs, who wish to pursue the Super Specialty Courses on sponsored seats of Autonomous institutions, NOC shall be granted only subject to fulfilment of clause 11.1.2 (a) and (b), notwithstanding the requirement of lesser/greater service in the prospectus of any particular Autonomous Institution.

(e) Such candidates who have been granted NOC as prescribed at Clause (d) above and have been subsequently selected to pursue the Super Specialty Course against sponsored quota of Autonomous ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 25 Institutions shall apply to the DHS for relieving and shall be relieved after fulfilment of formalities as prescribed at Clause 11.3.

11.1.3 There shall be no annual capping on the number of .

sponsored seats for Super Specialty Courses.

11.1.4 Any GDO who is not fulfilling the condition of minimum required service to be sponsored as Super Specialty Candidate within or out of the State shall have to resign and complete the obligation of the bond on their selection against direct/open seats before joining such courses. And if he/she joins Super Specialty Course without getting NOC/Sponsorship from the Government or without submitting his/her resignation, in case of contractual GDO his/her services shall be deemed terminated and recovery shall be made as per terms of contract agreement and in case of regular GDO candidate, disciplinary proceedings shall be initiated besides writing to the concerned Head of Institute for cancellation of the admission.

11.2 NOC/Sponsorship for Medical Faculty :

11.2.1 The State shall also allow the regular medical faculty to pursue Super Specialty Courses for career progression and providing better services to the patients of the State. However sponsorship shall only be available for the sponsored quota seats of Super Specialty Courses in Autonomous Institutions.

11.2.2 The conditions of sponsorship for medical faculty shall be the following:

(a) The Medical faculty should be regular.

(b) He/she should have served for a minimum period of three years in the Medical College as Assistant Professor or above.

(c) He/she should be occupying a post which is over and above the MCI requirement for running of Under Graduate/Post Graduate courses in the concerned institutions. For instance if as per MCI requirement two posts of Assistant Professors are required in Department of Medicine in a particular institutions and the candidates who is seeking sponsorship is one amongst the only two Assistant Professors available, he/she will not be given the benefit of the Sponsorship in any case. However, if there are three or more Assistant ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 26 Professors working against the sanctioned strength, which is more than the MCI requirement, sponsorship may be granted on a first come first serve basis.

11.2.3 The DME shall be competent to sign the Sponsorship Certificate on the behalf of the Government subject to fulfillment of conditions as outlined at clause 11.2.2 above and clause 11.3 below.

11.2.4 In the event of selection of the applicant who has been issued sponsorship certificate, the post which the incumbent was occupying before leaving for the course shall remain vacant and the incumbent shall join back on the same post after completion of Super Specialty Course. The medical faculty candidate who has successfully completed the course and joined back the Medical Education Department shall be entitled for seniority of the prescribed duration of the course in the same department. However, any formal designation/promotion shall happen only once the candidate joins back. In case, the incumbent wants to join against available entry level vacancy in the Super Specialty Department, he/she shall be allowed to join. However, in no case shall the incumbent be allowed to occupy the higher post in the Super Specialty Department and his services in that department shall be counted from the date of actual joining for the purpose of seniority/promotion etc. 11.2.5 In case any candidate of the regular medical faculty wants to appear for/pursue Super Specialty through NEET-Super Specialty Examination or the unsponsored quota seats of Autonomous Institutions, he/she may avail leave of kind due including study leave. However, in case sufficient leave is not admissible, the candidate will have to resign from the post and the post shall be deemed vacant for all purposes. And if he/she joins Super Specialty Course without getting NOC/Sponsorship from the Government or without submitting his/her resignation, disciplinary proceedings shall be initiated besides writing to the concerned Head of Institute for cancellation of the admission.

11.3 Terms and Conditions of Sponsorship for Super Specialty Courses :

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11.3.1 As the Government incurs substantive expenditure on each candidate for doing Super Specialty and also pays them full pay during the course, every GDO (regular) who have been sponsored to .

pursue Post Super Specialty within the State in Government Medical/Dental colleges shall have to furnish a bond to serve the State for at least five years after completion of their respective courses.

Similarly, in case of GDOs/medical faculty sponsored for Super Specialty outside the State (including sponsored quota seats of Autonomous Institutions), as the Government pays them full pay alongwith increments during the course, every GDO (regular)/medical faculty who has been sponsored to pursue Super Specialty outside the State shall have to furnish a bond to serve the State for at least seven years after completion of their respective courses. Similarly, as the Government expends huge resources in the education of Direct Candidates including payment of stipend, every direct candidate who pursues Super Specialty within the State in Government Medical/Dental Colleges shall have to furnish a bond to serve the State for at least three years after completion of their respective courses.

11.3.2 The categories of Super specialty Students (GDO/Direct) shall furnish bond as per detail below:

(a) The candidates shall furnish a bond in the form of a legal undertaking to serve the State for prescribed period failing which the candidate shall have to pay the Rs. 60 Lakhs to the State Government.

The candidate shall also furnish an undated cheque from a scheduled bank amounting to Rs. 60 Lacs (Sixty lacs) in the name of DHS (in case of GDOs) and or DME (in case of medical faculty/direct candidates). The DHS/DME shall be at liberty to get the cheque encashed in event of violation of the bond conditions.

(b) The candidates shall also furnish undertaking as a part of bond that they shall complete the course prescribed failing which they shall be liable to pay Rs. 15 lakhs to the State government for wastage of seat.

(c) The prescribed format of the bond shall be as per Annexure-B. ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 28 11.3.3 The general conditions including violation and procedure to be adopted shall be same as outlined in Clause 6, unless otherwise prescribed in this clause.

11.4 For leaving the course midway :

11.4.1 The GDOs, who leave the DM/MCh Super Specialty Course midway either within the State or outside the State of H.P., shall stand debarred to re-appear as a sponsored candidate for pursuing DM/MCh Super Specialty Course for next five years, for both within the State and outside the State of H.P. The period of five years for the purpose of de-

barring shall be reckoned from the date of leaving the course midway.

11.4.2 In case, the GDO who has been sponsored and treated as on duty (with full pay and allowances), leaves the course midway, the period involved shall be converted into/debited from Leave of Kind Due standing in his credit on the date on which he proceeded to join such course. If there is no sufficient leave of kind due in his credit that period may be treated as EOL and the payment made to the person for this period shall be recovered from the candidates. In addition to this, the GDO shall have to pay Rs. 15 Lakhs in event of leaving the course midway as per terms of the bond.

11.4.3 In case of direct candidates who leave the course midway, they shall have to pay Rs. 15 lakh to the State Government as per the terms of the bond. Information in respect of such cases shall be sent to the DME by the concerned Principal along with bond documents."

5) The controversy involved in the present cases relates to Clauses 6.1 and 11.1.2 of the 2019 Policy. As per clause 6.1 of the 2019 Policy, the GDOs, who have been sponsored to pursue Post Graduation within the State, will have to furnish a bond to serve the State for at least four years, including mandatory first year of field posting after completion of their respective courses. The GDOs, who are sponsored to pursue Post Graduation outside the State, are ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 29 required to furnish a bond to serve the State for at least five years, including mandatory first year of field posting, after completion of .

their respective courses. So far as the direct candidates, who pursue post graduation within the State are concerned, they shall have to furnish a bond to serve the State for at least two years, including mandatory first year of field posting, after completion of their respective courses.

6) So far as clause 11.1.2 of the 2019 Policy is concerned, the same deals with NOC and sponsorship for pursuing super specialty courses. As per the same, the GDOs seeking sponsorship should be regular and should have completed the mandatory service of the State after Post Graduation, as per clause 6.1 of the 2019 Policy. So far as direct candidates are concerned, those who subsequently join as GDOs, then they are required to serve the State for at least three years including one year of mandatory field posting to be eligible to seek sponsorship, for pursuing super specialty courses.

7) The writ petitioners are GDOs / direct candidates, who have furnished the necessary bonds, in pursuance to clause 6.1 of the 2019 Policy but want to pursue further studies like Super Specialty Courses or PG courses before the expiry of the bond period. Hence, petitioners had filed the writ petitions, challenging the ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 30 condition of mandatory period of service, as provided under clauses 6.1 and 11.1.2 of the 2019 Policy.

8) Admittedly, all the writ petitioners have furnished the necessary bonds in terms of clause 6.1 of the 2019 Policy at the time of pursuing PG(MD/MS) Degree/Diploma & Master Courses (hereinafter referred to as PG courses). The issue as to whether the Doctors could be made to furnish compulsory bonds for admission to post graduate medical courses and super specialty courses came up before the Hon'ble Supreme Court in Association of Medical Superspeciality Aspirants and Residents and others vs. Union of India and others, (2019) 8 Supreme Court Cases 607. The relevant paras of the said judgement are reproduced here-in-below:-

"1. The controversy in these cases pertains to the compulsory bonds to be executed for admission to post-

graduate medical courses and super speciality courses. The Association of Medical Super Speciality Aspirants and Residents has filed Writ Petition (Civil) No.376 of 2018 seeking a writ of mandamus for quashing the compulsory bond conditions, as imposed in the super speciality courses by the States of Andhra Pradesh, Goa, Gujarat, Himachal Pradesh, Karnataka, Kerala, Maharashtra, Orissa, Rajasthan, Tamil Nadu, Telangana and West Bengal respectively. A further direction is sought for returning the original mark- sheets, certificates and other documents retained by the respective State authorities after the completion of the concerned speciality courses.

         Xxx...                 xxx...                                  xxx...




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                                  31




    B. Reasonableness

19. Reasonableness is a ground that pervades through .

the submissions made by the counsel on both sides. In the State of West Bengal, the requirement of a compulsory bond was initially a service of one year in the State in default of Rs.10 Lakhs was to be paid. This was enhanced to three years and Rs.30 Lakhs by a Notification dated 09.10.2014. In the State of Tamil Nadu, the bond condition was that a doctor has to serve for ten years in the State and in default of which, the doctor was to pay Rs.2 Crores. This was reduced to two years and Rs.50 Lakhs. The Armed Forces Medical College imposes a condition of five years compulsory service in the Army for post-graduate and super Speciality doctors who prosecuted their study in the college. They have an option of not serving for five years by recompensing the Government by paying Rs.25 Lakhs. The main contention of the counsel appearing for the Appellants is that the condition of a long period of service that is imposed is unreasonable. The basis for the submission is that they have already served the society by working in Government hospitals while undergoing their course. Further conditions imposed on them would impede the progress of their careers. Restrictions placed on their choice of place of work are also unreasonable according to them. An alternate submission made by the counsel appearing for the Appellants is that the imposition of the condition of compulsory bond should be reasonable and the exit clause should be relaxed. Notifications issued by the State Governments imposing a condition of compulsory service and a default clause are per se not unreasonable. However, we are in agreement with the learned counsel for the doctors that the period of compulsory service and the exit should be reasonable. The State Governments and the Armed Forces Medical College are directed to consider imposing the condition of compulsory service period of two ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 32 years in default of which the Doctors shall recompense the Government by paying Rs. 20 Lakhs.

.

Xxx... xxx... xxx...

III. Contract of Personal Service

37. Section 14 of the Specific Relief Act, 1963 prohibits the enforcement of contracts of personal service. The submission of Mr. Ahmadi that the contract of personal service, in the form of a compulsory bond, is not enforceable was dealt with by Mr. Dwivedi, who argued that the State Governments do not intend to enforce the contract in a court of law. It is trite law that Courts do not ordinarily enforce performance of contracts of personal character, such as a contract of employment, Nandganj Sihori Sugar Co. Ltd. Rae Bareli & Anr. v. Badri Nath Dixit & Ors., 1991 3 SCC 54. Reference can be made to the judgment of Jessel, M.R., in Rigby v. Connol,1880 14 ChD 482, 487 wherein he held that:

"...The courts have never dreamt of enforcing agreements strictly personal in their nature, whether they are agreements of hiring and service, being the common relation of master and servant... ."

38. Specific performance of contract for personal service is not permissible under the Specific Relief Act, therefore, there cannot be a decree for specific performance of a contract of personal nature. None of the State Governments have made an attempt to enforce the contracts entered into by them with the Appellants through the service bonds. We are not in agreement with the submission of Mr. Ahmadi that the compulsory bonds fall foul of the Specific Relief Act.

IV. Restraint on Profession ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 33

39. The argument advanced on behalf of the Appellants that compulsory bonds placed a restraint on their profession and thus, would be contrary to Section 27 of the Indian Contract .

Act, 1872. The High Court of Calcutta repelled this submission by holding that the compulsory bond does not amount to any restraint on the professional activity of the Appellants. The High Court observed that the Appellants are offered the job of Medical Officer in the State of West Bengal and that the covenant in the compulsory bond operates only during the period of such employment. Relying upon the dictum of Lord Morris in Esso Petroleum v. Harper s Garage (Stourport) Ltd., 1967 1 AllER 699. that "if A made a contract under which he willingly agreed to serve B on reasonable terms for a few years and to give his whole working time to B, it would be surprising indeed, if it were sought to describe the contract as being in restraint of trade; in fact, such a contract would very likely be for the advancement of trade."

The High Court concluded that a contract entered into by Appellants to serve the government for a few years under reasonable terms cannot be described as one in restraint of trade. We are in agreement with the findings recorded by the High Court of Calcutta. Therefore, we are of the considered opinion that the conditions of compulsory bonds for admission to post-graduate and super-Speciality courses in government medical colleges are not in violation of Section 27 of the Indian Contract Act, 1872.

40. The upshot of the above discussion is that the Writ Petitions and the Appeals deserve to be dismissed. Consequently, all the Doctors who have executed compulsory bonds shall be bound by the conditions contained therein.

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41. Taking note of the fact that certain State Governments have rigid conditions in the compulsory bonds to be executed by the Appellants and the felt need of uniformity in .

the matter pertaining to the compulsory bonds, we suggest that suitable steps be taken by the Union of India and the Medical Council of India to have a uniform policy regarding the compulsory service to be rendered by the Doctors who are trained in government institutions.

42 The Writ Petitions and the Appeals are dismissed."

9) Mr. Ajay Vaidya, learned Senior Additional Advocate General, has submitted that the learned single Judge fell in error, allowing the writ petitions vide impugned orders dated 19.07.2021 & 28.07.2021, while interpreting the decision given by the Hon'ble Supreme Court in Association of Medical Superspeciality's case (supra). In fact the Hon'ble Supreme Court had held that all the doctors, who had executed compulsory bonds shall be bound by the conditions therein. It was, however, suggested that suitable steps be taken by the Union of India and Medical Council of India to have a uniform policy regarding the compulsory service to be rendered by the doctors who are trained in Government institutions. So far, no such uniform policy has been framed. All the petitioners have executed bonds at the time of pursuing further studies and they were bound by the terms of the bonds. Learned Senior Additional Advocate General has laid stress on clause 6.1. of the 2019 Policy, wherein it was mandatory for the GDOs and direct candidates to furnish bonds ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 35 to serve the State, for a period of 4/5/2 years, including mandatory first year of field posting, after completion of their respective .

courses. Mr. Ajay Vaidya, has further submitted that the 2017 policy was amended in the year 2019, keeping in view the financial implications as well as the fact that more then 90% GDOs / direct candidates who had completed their P.G. / super specialty courses did not rejoin service and left jobs without serving the State, despite

10) r to bonds submitted by them. Hence, need arose to form a new policy in the year 2019.

Mr. Ajay Vaidya, learned Senior Additional Advocate General has further submitted that so far as Dr. Varun Jaswal and Dr. Aarti Dhatwalia are concerned, they had not completed two years of their service after completion of their post graduation. No objection certificates issued in their favour in view of the interim directions issued by this Court in their writ petitions were subsequently withdrawn by the department vide letter dated 24th July, 2021. Dr. Varun is continuing his services at PJNL Government Medical College, Chamba and Dr. Arti Dhatwalia is continuing her services in the office the Chief Medical Officer, Shimla (STD Clinic). Dr. Varun and Dr. Arti Dhatwalia had not challenged the orders/letter dated 24th July, 2021 whereby their NOCs were withdrawn and due to this reason no LPAs have been filed by the State vis-à-vis the said doctors as they have now no cause of action left with them.

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11) Mr. Neeraj Sharma, learned counsel for Dr. Chander Shekhar, has submitted that Hon'ble Supreme Court in Association .

of Medical Superspeciality's case (supra), in para 40, has held that once the doctors have executed the bonds for a certain period they are bound by that. Petitioners have executed the bonds to serve the State after completion of P.G. courses for a period of 4/5 years.

Hence, the writ petitions filed by the petitioners were liable to be dismissed. Learned counsel has placed reliance on para 39 to 41 of the judgement of the Supreme Court of India in Association of Medical Superspeciality's case (supra). He has further submitted that learned single Judge has specifically observed that there was no reason to interfere with the 2019 Policy formulated by the State for regulating various P.G/super specialty courses within and outside the State. However, the learned Single Judge has erred in observing that the Hon'ble Supreme Court has directed the respondents to reduce the mandatory period from 4/5 years to 2 years, whereas, it has been observed in para 40 of the judgement by the Hon'ble Supreme Court that all the doctors, who had executed compulsory bonds, shall be bound by the conditions contained therein. The writ petitioners had not completed the stipulated service period in terms of the bonds submitted by them, hence, the writ petitions were liable to be dismissed.

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12) Mr. B.C.Negi, learned Senior Advocate, on behalf of Dr. Manoj Sharma and Dr. Sohil Chauhan, has submitted that no .

objection certificate can be granted after completion of mandatory one year of service, as is provided in 2019 Policy. As per clause 6.1, candidates shall have to furnish a bond to serve the State for at least four years, including mandatory first year of field posting after completion of their respective courses. The word "shall" in the aforesaid provision precedes the expression "have to furnish a bond". Therefore, furnishing of a bond is mandatory because of the use of word "shall". The remaining provision provides the following:-

(a) the bond provided is to serve the State; (b) the bond so filled is for at least four years; (c) the bond period specified includes a mandatory first year of field posting after completion of their respective courses. As per clause 6.5 of 2019 Policy, in no case NOC will be granted for second Post Graduation Coure/Super Specialty Course/Senior Residency to any candidate during the mandatory period of service of the State after Post Graduation. The mandatory period of service of the State referred to in this clause is in fact a reference to the mandatory period of service of the State referred to in clause 6.1. As per clause 6.6 of 2019 Policy, there was violation of bond to serve the State as outlined in clause 6.1 by putting in a request for EOL/study leave, NOC during mandatory period of service of the State and putting in request for senior ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 38 residency within the mandatory first year of field posting. The expression "during mandatory period of service of the State" used in .

clause 6.6.2 and 6.5 has exactly the same meaning as the expression "mandatory first year of field posting" used in clauses 6.6.3 and 6.1. The mandatory period of service of State referred to in this cause is in fact a reference to the mandatory period of service of the State referred to in clause 6.1. In fact the same are inter-

changeable.

6.5., 6.6.2, 11.1.2(a).

r to Otherwise, it would be difficult to reconcile clauses After referring to clause 11 of 2019 Policy, learned counsel submitted that a candidate after one year of mandatory service can get a NOC and thereafter the candidate can take the examination. In case the candidate qualifies then the candidate can seek sponsorship and thereafter can be relieved by signing an appropriate necessary bond in terms of clause 11.3. The provisions of the policy have to be given a plain meaning as there is no ambiguity and nothing therein can be treated as a surplusage.

He further submitted that his argument is fortified by the fact that there is a departure from the 2017 Policy which did not require the GDO to serve the State for any period before joining the super specialty course. It is evident from Annexure B of 2017 Policy, clause 2 thereof that all GDOs who had done post graduation during service shall be eligible for pursuing DM/Mch courses without any condition of serving the State after Post Graduation. However, ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 39 GDOs who join HP Health Services directly after completion of Post Graduate Degree course will have to serve the State for a period of .

at least two years for becoming eligible for DM/Mch super specialty courses as a sponsored candidate. However, clause 4.3 of Annexure A of 2017 Policy and clause 4.3 of Annexure B of 2017 Policy talk about adding of the left over years. Thus, '2017 Policy' was beneficial and in the larger public interest of the State of Himachal Pradesh.


    13)
                       r           to

Sh. B.C.Negi, learned Senior Counsel, further argued that the doctors who had topped the examination were meritorious in their respective fields. The State would have benefited after the doctors had completed their respective super specialty courses within three years and would have been an asset to the society.

Professed aim of the policy is to improve the health care facility and benefit the public at large. The zeal to study and improve one's own skill is done at an early age. However, by imposing conditions of several years of State service without any thought and application of mind is detrimental not only to doctors but to the health infrastructure. The obiter part of the judgement of Hon'ble Supreme Court in Association of Medical Superspeciality's case (supra), mentioned in para 19 of the judgement, is also important. It had been observed by the Hon'ble Supreme Court that they were in agreement with the learned counsel for the doctors that the period of ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 40 compulsory service and the exit should be reasonable. The State Governments and the Armed Forces Medical Colleges were .

directed to consider imposing the condition of compulsory service period of two years in default of which the doctors shall recompense the Government by paying Rupees Twenty lacs. Thus, a specific direction has been given to the State Governments to reduce the compulsory period as well as the bond amount. The State r to Government had given NOC to Dr. Lucky and Dr. Nipun and others in the year 2020 but the same have been denied to Dr. Manoj Sharma and Dr. Sohil Chauhan. So far as Dr. Chander Shekhar is concerned, he has no concern with the specialty undertaken by Dr. Manoj Sharma and Dr. Sohil Chauhan and by filing the appeal by him an ir-repearable loss has been caused to Dr. Manoj Sharma and Dr. Sohil Chauhan. So far as the writ petition filed by Dr. Manish Sharma, is concerned, the said petitioner had served for more than three years four months after completion of his P.G. course and had applied for super specialty course at AIIMS for plastic and reconstructive surgery and the last date for the submission of form is 21.11.2021. The said petitioner was always ready and willing to serve the State as is clear from his past record.

The petitioner needs NOC to appear in the examination and has already served the mandatory period of one year as per policy and two years as per the observations made by the Hon'ble Supreme ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 41 Court in Association of Medical Superspeciality's case (supra). The petitioner is ready to give an undertaking that he shall serve the .

State after completion of the course. NOC had already been given to his juniors i.e. Dr. Nipun and Dr. Lucky. The petitioner shall also give an undertaking as directed in State of H.P. and another vs. Kunal Kumar and another in CWP No. 941 of 2019 on 03.05.2019.

14) Mr. Manish Sharma, learned counsel for Dr. Mahender Singh Rana and Dr. Nishant Nadda, in CWP No. 6504 of 2021, has submitted that he adopts the arguments raised by Shri B.C.Negi, learned Senior Advocate, in LPA No. 67 and 68 of 2021. He further submitted that petitioner No.1 (Dr. Mahender Singh Rana) had applied for the only seat in sponsored category in super specialty of M.Ch. in Minimal Access Surgery pursuant to the prospectus issued by AIIMS, New Delhi for July 2021 session. The petitioner No.2 (Dr. Nishant Nadda) had applied for the only seat in sponsored category in super specialty of D.M. Nephrology in PGIMER, Chandigarh pursuant to prospectus issued by the said institution for July 2021 session. Petitioners had undergone post graduation, as sponsored GDO candidates, who were not granted NOC by the department for participating in the aforesaid examination, on the ground that they had only completed three years service after post graduation and were required to complete four years service after post graduation courses. Petitioners were granted interim relief by this Court and ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 42 were issued provisional NOC. Petitioner No.1 was selected in AIIMS, New Delhi for the only seat of M.Ch. in Minimal Access .

Surgery and petitioner No.2 was selected for the only seat of D.M. Nephrology in PGIMER Chandigarh. The respondent-department contested the claim of the petitioners to seek sponsorship. The writ petition filed by petitioner No.1 was allowed by the learned Single Judge vide impugned judgement dated 19th July, 2021 alongwith other connected writ petitions. Vide order dated 23 rd July, 2021, in a review petition, petitioner No.2 was held entitled to get sponsorship on the basis of the judgement dated 19th July, 2021. Sponsorship certificate had been issued in favour of the petitioners. The respondent-department withdrew the sponsorship granted to the petitioners and other candidates, who were not party in LPA No. 68 of 2021. Hence, the petitioners have filed CWP No. 6504 of 2021 challenging the letters dated 17th September, 2021, whereby the sponsorship granted to them had been withdrawn. Later State filed separate LPAs No. 136, 140 to 143 of 2021 in other writ petitions also, including the petitions filed by the petitioners after withdrawing their sponsorship. State has taken a conscious decision to implement the judgement passed in favour of the petitioners by not filing LPA at the initial stage but had filed LPAs after withdrawing sponsorship granted to the petitioners on the basis of stay order dated 10.08.2021 granted in LPA No. 67 of 2021, whereas said LPA ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 43 did not relate to the petitioners. The rights of the petitioners had got crystallized on the basis of the fact that the petitioners have availed .

the benefit of such sponsorship and have changed their position by joining the respective courses. Hence, the judgement of the learned Single Judge was liable to be upheld. The petitioners have already executed bonds that they will serve the State for seven years after completing their super specialty course. The bonds have been executed in terms of provisions of para 11.3 of the 2019 Policy. So far as the petitioners are concerned, there is no other contender in their super specialty courses and in case their sponsorship is withdrawn the seat occupied by the petitioners would go waste. The petitioners are undergoing super specialty course in important fields and they would be useful to the State after completion of their super specialty courses. Hence, it would be harsh to allow the respondent-State to withdraw the seats in the peculiar facts and circumstances of the case, as the same would cause more harm than good to the larger public exchequer.

15) We have heard learned counsel for the parties and have also gone through the records of the case file.

16) The question involved in the present case as to whether the State can insist for execution of compulsory service period by seeking bonds has been duly dealt and considered by the Hon'ble Supreme Court of India in Association of Medical Superspeciality's ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 44 case (supra). The Hon'ble Supreme Court has gone into various aspects of the matter i.e. jurisdiction of the State Government, .

violation of fundamental rights, contract of personal service and restraint on profession. While dealing with the issue of fundamental rights the Hon'ble Supreme Court has gone into the aspects of arbitrariness and reasonableness while discussing Article 14 , 19 , 21 and 23 of the Constitution of India.

17) Para 1 of the judgement in Association of Medical Superspeciality's case (supra), reveals that writ of mandamus had been filed by the Association seeking quashing of the compulsory bond condition, as imposed by the States including the State of Himachal Pradesh. While dealing with the issue of 'reasonableness', it had been observed by the Hon'ble Supreme Court in para 19 of the judgement that the State Governments and the Armed Forces Medical College should consider imposing the condition of compulsory service period of two years, in default of which, the doctors shall recompense the Government by paying Rupees Twenty lacs, as the period of compulsory service and the exit should be reasonable. Thus, it is evident that the State Government and the Armed Forces Medical College were directed by the Supreme Court to consider reducing the condition of compulsory service period and bond money. Upon a conjoint reading of paras 40 and 41 of the judgement alongwith para 19 of the judgement, it cannot ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 45 be said that the Hon'ble Supreme Court had reduced the compulsory service period to two years or the bond money to .

Rupees Twenty lacs rather para 40 of the judgement makes it clear that all the doctors who had executed compulsory bond shall be bound by the conditions contained therein. A suggestion was given to the Union of India and the Medical Council of India to form a uniform policy regarding the compulsory service to be rendered by

18) r to the doctors who are trained in Government institutions. Admittedly, so far no uniform policy has been framed.

It has been observed by Hon'ble Supreme Court that while dealing with the aspect of restraint on profession that condition of compulsory bonds for admission to post graduation and super specialty courses in Government Medical colleges are not in violation of Section 27 of the Contract Act.

19) During the course of arguments, it has been brought to our notice that National Medical Commission vide its letter dated 27th October, 2021 has written to the Joint Secretary, Medical Education (Policy), Ministry of Health and Family Welfare, Government of India, New Delhi on the subject of formulation of Mandatory Rural Service Scheme and Uniform Bond Policy by National Medical Commission that in the meeting held by the National Medical Commission, it was unanimously proposed for doing away with the bond policy and mandatory Rural Service ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 46 Scheme. Copy of the letter dated 27th October, 2021 issued by the National Medical Commission is taken on record. Para 3 of the .

letter dated 27th October, 2021 reads as under:

"3. In view of above, during the second NMC meeting held on 16.03.2021 as well as during the third NMC meeting held on 14.06.2021, all the NMC members unanimously proposed for doing away with the Bond policy and mandatory Rural Service Scheme. Further, all NMC members were of the opinion that implementation of the bond policy was under the purview of the Government of India/State Government/UT Administration concerned and no further action was required to be taken by NMC in this matter."

20) However, admittedly no decision has been taken so far by formulating any uniform policy in this regard. No action has been taken by the Government of India or State Government or Union Territory Administration on the letter dated 27th October, 2021.

21) So far as the argument raised by the learned counsel for the doctors (petitioners in the writ petitions) is concerned that there was no occasion to revise the 2017 Policy, we are unable to accept the same. It has been submitted by Mr. Ajay Vaidya, learned Senior Additional Advocate General that the 2019 Policy was formed by keeping in view the fact that Himachal Pradesh, being a welfare State, was responsible to meet the health needs of the residents as well as to provide best health facilities to its citizens.

Due to topographical and geographical conditions of the State, 90% ::: Downloaded on - 31/01/2022 23:19:21 :::CIS 47 of its population resides in remote/difficult/rural areas. Hence, to provide best health facilities and to fill up the vacant posts lying .

vacant in remote/difficult/rural/tribal areas of the State, 2017 Policy had been issued. As per the said policy bonds were to be taken from GDOs as well as direct candidates that they would serve the State after post graduation for a minimum period of five years and super specialist for a minimum period of seven years, otherwise they would deposit 10/15 lacs in the Government treasury. However, many GDOs did not return to do State service after completing their post graduation on the basis of sponsorship and were absconding.

Due to this reason there was shortage of GDOs. Mr. Ajay Vaidya, learned Senior Additional Advocate General further submitted that presently 36 doctors who had taken advantage of the State Government sponsorship were not working in the State nor the bond money had been recovered from the said candidates till date. In the year 2016-17, 69 candidates had passed out from Shimla and Tanda hospitals but presently only one doctor was working out of them. In the year 2017-18, 82 candidates had passed out from Shimla and Tanda hospitals but only one was presently serving the State. Thus, out of these 151 candidates, only two doctors were working with the State and the remaining had failed to join back the service of the State. Due to this reason it was found necessary to amend the 2017 Policy.

::: Downloaded on - 31/01/2022 23:19:21 :::CIS 48

22) Mr. Ajay Vaidya, learned Senior Additional Advocate General has produced the original record vis-à-vis formulation of .

2019 policy. The relevant portion has been taken on record. The details of the candidates for the last five years, who had been sponsored by the State as per original record shown to us during the course of arguments is as under:-

State Sponsored I.G.M.C. candidates Shimla Name of the 2014-15 2015-16 2016-17 2017-18 2018-19 institution 40 50 50 78 50 Dr.RPGMC, 21 27 35 45 46 Tanda Candidates who ... 0 0 0 0 0 were sponsored outside the State through NEET-PG Sponsored ... 0 0 0 2 1 candidates against unsponsored/un specified quota in autonomous institutions outside the State.

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Himachal Pradesh High Court