Himachal Pradesh High Court
Dr. Nitish Paul Sharma vs Union Of India And Others on 1 July, 2020
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
CWP No. 3410 of 2019 and
.
other connected matters.
Reserved on: 26.6.2020
Decided on: 1st July, 2020
1. CWP No. 3410 of 2019
Dr. Nitish Paul Sharma ...Petitioner.
Versus
Union of India and others ...Respondents.
2. CWP No. 3487 of 2019
Dr. Swati Garg ...Petitioner
Versus
Union of India and others ..Respondents.
3. CWP No.3488 of 2019
Dr. Nishant Dhiman ...Petitioner
Versus
Union of India and others ...Respondents.
4. CWP No. 3490 of 2019
Dr. Vipul ....Petitioner
Versus
Union of India and others ...Respondents.
5. CWP No.3491 of 2019
Dr. Vinay Kumar ...Petitioner
Versus
Union of India and others ...Respondents
6. CWP No. 3492 of 2019
Dr. Jagdeep Singh ...Petitioner
Versus
Union of India and others ...Respondents
7. CWP No. 3493 of 2019
Dr. Bhanuj Pathania ...Petitioner
Versus
Union of India and others ...Respondents
8. CWP No. 3494 of 2019
Dr. Ajay Dadhwal ...Petitioner
Versus
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Union of India and others ...Respondents
9. CWP No.3495 of 2019
.
Dr. Lokesh Thakur ...Petitioner
Versus
Union of India and others ...Respondents
10. CWP No.3496 of 2019
Dr. Gaurav Bhardwaj ...Petitioner
Versus
Union of India and others ...Respondents
11. CWP No. 3497 of 2019
Dr. Pankaj Kumar ...Petitioner
Versus
Union of India and others
r ...Respondents
12. CWP No. 3498 of 2019
Dr. Chander Kant ...Petitioner
Versus
Union of India and others ...Respondents
13. CWP No. 3499 of 2019
Dr. Sandeep Kumar ...Petitioner
Versus
Union of India and others ...Respondents
14. CWP No. 3500 of 2019
Dr. Dinesh Kumar ...Petitioner
Versus
Union of India and others ...Respondents
15. CWP No.3501 of 2019
Dr. Rakesh Kumar ...Petitioner
Versus
Union of India and others ...Respondents
16. CWP No. 3502 of 2019
Dr. Shivdeep Anand Sharma ...Petitioner
Versus
Union of India and others ...Respondents
17. CWP No. 3503 of 2019
Dr. Satinder Kumar ...Petitioner
Versus
Union of India and others ...Respondents
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18. CWP No. 3504 of 2019
Dr. Dherander Sharma ...Petitioner
.
Versus
Union of India and others ...Respondents
19. CWP No. 3505 of 2019
Dr. Shilpa Bhardwaj ...Petitioner
Versus
Union of India and others ...Respondents
20. CWP No. 3506 of 2019
Dr. Rakesh Kumar ...Petitioner
Versus
Union of India and others ...Respondents
21. CWP No. 3533 of 2019
Dr. Pratibha Sharma ...Petitioner
Versus
Union of India and others ...Respondents
22. CWP No. 3534 of 2019
Dr. Lovepreet Singh ...Petitioner
Versus
Union of India and others ...Respondents
23. CWP No. 3560 of 2019
Dr. Shilpa Rani ...Petitioner
Versus
Union of India and others ...Respondents.
24. CWP No. 3561 of 2019
Dr. Vivek Singh ....Petitioner
Versus
Union of India and others ...Respondents
25. CWP No. 3562 of 2019
Dr. Varun ...Petitioner
Versus
Union of India and others ...Respondents
26. CWP No. 3575 of 2019
Dr. Sonia Sharma ..Petitioner
Versus
Union of India and others ...Respondents
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27. CWP No.3576 of 2019
Dr. Ajay Thakur ...Petitioner
.
Versus
Union of India and others ...Respondents
28. CWP No.3577 of 2019
Dr. Anup Kumar ...Petitioner
Versus
Union of India and others ...Respondents
29. CWP No. 3578 of 2019
Dr. Sakshi Surroch ...Petitioner
Versus
Union of India and others ...Respondents
30. CWP No. 3589 of 2019
Dr. Nidhi Jishtu ...Petitioner
Versus
Union of India and others ...Respondents
31. CWP No.3593 of 2019
Dr. Adarsh Kumar ..Petitioner
Versus
Union of India and others ...Respondents
32. CWP No.3919 of 2019
Dr. Neha Thakur ...Petitioner
Versus
Union of India and others ...Respondents
________________________________________________________
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting? 1 Yes
For the Petitioner(s): Mr. Vinay Sharma, Advocate.
For the Respondents: Mr. Rajesh Sharma, Assistant Solicitor
General of India, for Union of India.
1
Whether reporters of the local papers may be allowed to see the judgment? yes
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Mr. Ashok Sharma, Advocate General, with
Mr. Ajay Vaidya, Sr. Additional Advocate
General for the respondents/State.
_________________________________________________________
.
Justice Tarlok Singh Chauhan, J.
Since common question of law and facts arise for consideration, therefore, all these petitions were taken up together for consideration and are being disposed of by a common judgment.
2. The petitioners are qualified Ayush Doctors, who possess requisite degree in the field of Ayurved Unani, Homoeopathy etc. and have filed the instant petition assailing therein an advertisement dated 05.11.2019 (Annexure P1) issued by respondent No.4.
3. The precise grievance of the petitioners is that even though they are eligible for admission to six months bridge course for the purpose of filling up of 480 posts of Community Health Officer (for short 'CHO') as advertised, but the respondents have illegally and arbitrarily confined the zone of consideration only to the candidates possessing qualification of B.Sc. Nursing, whereas their counterparts in other States, more particularly, Punjab, Uttar Pradesh, Haryana, Rajasthan, Maharashtra, Assam, Madhya Pradesh and Bihar Ayush Doctors have been made eligible and, consequently, the action of the respondents is clearly ::: Downloaded on - 01/07/2020 20:22:21 :::HCHP 6 violative of Constitution of India being discriminatory and also violative of the principles of parity.
.
4. It is on these allegations that the petitioners have prayed for the grant of following reliefs:
"(i) Issue a writ of certiorari to quash Annexure P1 i.e. advertisement issued by respondent No.4.
(ii) Issue a writ of mandamus directing the respondentauthorities to consider the candidature of the petitioners for the post of r Community Health Officer as per the National Health Mission Policy, 2017 and allow the petitioners to make applications for the bridge course."
5. Counter affidavit has been filed on behalf of the Union of India in CWP No. 3577 of 2019 titled Dr. Anoop Kumar vs. Union of India and others, wherein it is stated that initially there was a proposal that Public Health and Hospitals being State subject and, therefore, is primary and exclusive responsibility of the State. The implementation of the National Health Mission (for short 'NHM') through the State Health Society is under the exclusive domain of the State and the programme being periodically, only contractual Human Resource is allowed to be engaged through the State Health Society set up under the Mission.
::: Downloaded on - 01/07/2020 20:22:21 :::HCHP 76. It is further averred that the creation and abolition of posts, formation and structuring/restructuring .
of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees; fall within the exclusive domain of the concerned State.
7. Lastly, it is represented that Public Health and Hospitals being the State subject, the decision for selecting categories from those mentioned in para 11.4 (infra) for the post of CHOs, is the prerogative of the State Government, as suitable to them. Hence, it is upto the State to decide as to which category of persons are required to be extended bridge course for appointment to the post of CHOs.
8. The State of Himachal Pradesh, through its Secretary (Health) alongwith Mission Director, National Health Mission, Himachal Pradesh has filed joint reply wherein it is averred that since there was a pressing need to strengthen health sub centres to provide Comprehensive Primary Care including for NonCommunicable Diseases (NCDs) and further since the global evidence suggested that suitably trained 34 years duration service providers could provide considerable primary care, the Government of India in the year 2013 had approved the introduction of a three ::: Downloaded on - 01/07/2020 20:22:21 :::HCHP 8 and half years Bachelor of Science in Community Health (Bsc CH) courses in India as one of the measures to increase .
the availability of such appropriately qualified Human Resources especially in rural and remote areas.
9. It is further averred that since the uptake for this course had been slow and if some Universities were to start the course, the first batch of professionals would have and B.Sc./GNM been available for recruitment only by the end of the fourth year; whereas on the other hand, qualified Ayurveda doctors qualified nurses were available in the system, who could be trained in Public Health and Primary Care through suitably designed 'Bridge Programs on certificate in Community Health', which qualified Human Resources may function as MidLevel Health Care Providers and called Community Health Officers (CHOs) and posted at Health Sub Centres; which could be developed as 'Health and Wellness Centres'.
10. It has further been averred that the guidelines of the Central Government merely specified the zone of consideration to include Ayush doctors and it was left for the State Government to finalize as to who were the persons required to act as Community Health Officer and further since the health being a State subject, the decision for ::: Downloaded on - 01/07/2020 20:22:21 :::HCHP 9 selection for individuals for the post of Community Health Officers lies within the purview of the State Government. The .
State Government after taking well considered decision to select the eligible candidates with essential qualification as B.Sc Nursing with their registration in the H.P. Nursing Council for undergoing the Bridge Course and on successful completion of such course to be further deployed as Community Health Officer in Health and Wellness Centres.
11. We have heard learned counsel for the parties and have gone through the material placed on record.
12. Clause 11.4 of the National Health Policy, 2017 reads as under:
"11.4. MidLevel Service Providers: For expansion of primary care from selective care to comprehensive care, complementary human resource strategy is the development of a cadre of midlevel care providers. This can be done through appropriate courses like a B.Sc. in community health and/or through competency based bridge courses and short courses. These bridge courses could admit graduates from different clinical and paramedical backgrounds like AYUSH doctors, B.Sc. Nurses, Pharmacists, GNMs, etc. and equip them with skills to provide services at the subcentre and other peripheral levels. Locale based selection, a special curriculum of training close to the place where they live and work, conditional licensing, enabling legal framework and a positive practice environment will ensure that this new cadre is preferentially available where they are needed most, i.e. in the underserved areas."::: Downloaded on - 01/07/2020 20:22:21 :::HCHP 10
13. A perusal of the Clause 11.4 of the National Health Policy, 2017 as reproduced above, makes it clear that .
Bridge Courses could admit graduates from different clinical and paramedical backgrounds like Ayush doctors, B.Sc.
Nurses, Pharmacists, GNMs etc. and equip them with skills to provide services at the subcentre and other peripheral levels. The Union of India has left it to the State Government to decide as to which category of the persons are required to be extended bridge course for appointment to the post of Community Health Officer. Now until and unless the decision of the State Government is shown to be arbitrary or contrary to any statutory provision the same cannot be lightly interfered with.
14. The Court while exercising the power of judicial review, cannot be oblivious to the practical needs of the Government and the door should be left open for trial and error for which there has to be a reasonable play in the joints.
15. The jurisdictional limitations are well drawn and the Court in its power of judicial review cannot sit in judgment over the policy matters except on limited grounds, namely, whether the policy is arbitrary, malafide, unreasonable or irrational. The Government is entitled to ::: Downloaded on - 01/07/2020 20:22:21 :::HCHP 11 make pragmatic adjustments and make policy decision(s), which may be necessary or called for under the prevalent .
peculiar circumstances. The Court may not strike down a policy decision taken by the Government, merely because it feels that another decision would have been fairer or wise or more scientific or logical.
16. The principle of reasonableness and non arbitrariness in Governmental action is the core of our constitutional scheme and structure and the interpretation is always dependant upon the facts and circumstances of the case. The policy in the instant case cannot be termed to be capricious or not informed by reasons or formed on ipsi dixit of the respondents.
17. Even otherwise it is more than settled that essential qualifications for appointment to the post are for the employer to decide according to needs and nature of work and it is not for the Courts to lay down the conditions of eligibility, much less it delve into the issue with regard to desirable qualifications being on a par with the essential eligibility by an interpretive rewriting of the advertisement.
Questions of equivalence will also fall outside the domain of judicial review. (See: Maharashtra Public Service ::: Downloaded on - 01/07/2020 20:22:21 :::HCHP 12 Commission through its Secretary vs. Sandeep Shriram Warade and others (2019) 6 SCC 362).
.
18. From the records that were made available for the perusal of this Court, it is clearly evident that initially a decision for upgradation of 24 SubCentres (12 each in District Kangra and Sirmaur) as Health and Wellness Centres was proposed by the respondents by constituting expert team. This was to see the feasibility and mode of operation before replicating it in rest of the State. The matter was thereafter placed before the Cabinet alongwith report of the expert. The Cabinet in its meeting held on 04.10.2017 accorded approval to establish 24 SubCentres as Health and Wellness Centres. It was thereafter that the respondents decided to upgrade 104 SubCentres, 18 Primary Health Centres (PHCs) and 15 Urban Primary Health Centres (UPHCs) as Health and Wellness Centres in Himachal Pradesh on pilot basis and initiated steps for appointment of B.Sc Nurses as the Team Leader/Mid Level Service Providers.
19. Now, it being a policy decision can be interfered with only on well accepted grounds as noticed above.
20. Adverting to the first contention of the petitioners that in other States, Ayush doctors have been ::: Downloaded on - 01/07/2020 20:22:21 :::HCHP 13 included for training and therefore could not be excluded in this State. Suffice it to say, that, the requirements of .
different States will be assessed by those State Governments and merely because in some of the States, Ayush doctors have been included for extending the bridge course, will not be a ground to question the policy of the State of Himachal Pradesh.
21. The principles of parity are not attracted in the matters of policy, as each State is empowered to formulate its own policy. It is not normally within the domain of any Court to weigh pros and cons of the policy except, as observed above, where it is arbitrary or violative of any constitutional, statutory or any other provisions of law. The Court would dissuade itself from entering into the realm of policy which belongs to executive. The Court cannot strike down a policy merely because it feels that another policy would have been fairer or wiser or more scientific or logical.
22. Adverting to the other contention of the petitioners that the policy is discriminatory in nature, we find that the assessment by the State to restrict a category of person alone to extent the bridge course is neither perverse nor irrational much less arbitrary. The National Health Policy, 2017 or for that matter the National Health Mission, ::: Downloaded on - 01/07/2020 20:22:21 :::HCHP 14 nowhere makes it compulsory for the State Government to invite Ayush doctors to extend bridge course. Therefore, in .
the given circumstances, until and unless the petitioners point out that their fundamental rights or other rights have been violated or that advertisement (Annexure P1) is contrary to policy or act or rule, the Court cannot interfere with the advertisement so issued by the respondents. It is for the respondentState to take decision in this regard.
23. The mode of recruitment/selection and category from which the recruitment/selection is to be made is a policy matters exclusive within the purview and domain of the executive and it is not appropriate for the judicial body to sit in the judgment in the wisdom of the executive in choosing the mode of recruitment/selection in such matters.
Furthermore, the mere fact that the chance of the petitioners to take part in the selection process has been curtailed or for that matter even obliterated cannot by itself lead to an inference that the action of the respondents is arbitrary or unreasonable.
24. Similar reiteration of law is to be found in the judgment rendered by the Allahabad High Court in case titled Mahendra Singh Yadav and others vs. State of U.P. and others, Writ No. 9696 of 2019, decided on ::: Downloaded on - 01/07/2020 20:22:21 :::HCHP 15 19.9.2019, Madhya Pradesh High Court (Indore Bench) in case titled Abhishek Parmar vs. State of Madhya Pradesh .
and another, W.P. No.23625/2019, decided on 08.11.2019, Dr. Vinod Gunkar and others vs. State of Madhya Pradesh and others, Writ Petition No. 24934/2019, decided on 22.11.2019 and Mohanlal Kumawat and others vs. State of Madhya Pradesh and others, Writ Petition No. 23548/2019, decided on 25.11.2019.
25. In view of the aforesaid discussion and for the reasons stated above, we find no merit in these petitions and the same are accordingly dismissed, so also the pending application(s), if any. The parties are left to bear their own costs.
(Tarlok Singh Chauhan) Judge (Jyotsna Rewal Dua) 1 July, 2020.
st Judge (GR) ::: Downloaded on - 01/07/2020 20:22:21 :::HCHP