Himachal Pradesh High Court
Dr. Ashish Sharma And Others vs State Of Himachal Pradesh And Others on 12 March, 2020
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.: 2888 of 2019 a/w
.
CWPs No. 2748, 3184, 3288
and 3297 of 2019
Decided on: 12.03.2020
CWP No. 2888 of 2019
Dr. Ashish Sharma and others ....Petitioners.
Versus
State of Himachal Pradesh and others ...Respondents.
CWP No. 2748 of 2019
Dr. Sunita ....Petitioner.
Versus
State of Himachal Pradesh and others ...Respondents.
CWP No. 3184 of 2019
Dr. Anita and another ....Petitioners.
Versus
State of Himachal Pradesh and others ...Respondents.
CWP No. 3288 of 2019
Dr. Priyanka Gupta ....Petitioner.
Versus
State of Himachal Pradesh and others ...Respondents.
CWP No. 3297 of 2019
Himanshu Nautiyal ....Petitioner.
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Versus
State of Himachal Pradesh and others ...Respondents.
Coram
.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
CWP No. 2888 of 2019
For the petitioners : Mr.Shrawan Dogra, Sr. Advocate
with M/s Tejasvi Dogra, Deepak
Sharma and Harsh Kalta,
Advocates.
For the respondents : Mr. Ajay Vaidya, Sr. Additional
Advocate General for respondents
r /State.
: Mr. Ajay Sharma, Sr. Advocate
with Mr. Amit Jamwal, Advocate
for intervener.
CWP No. 3297 of 2019
For the petitioners : Ms. Suman Thakur, Advocate.
For the respondents : Mr. Ajay Vaidya, Sr. Additional
Advocate General for respondents
/State.
CWP No. 2748 of 2019
For the petitioner : Mr. Sudhir Thakur, Sr. Advocate
with Mr. Karun Negi, Advocate.
For the respondents : Mr. Ajay Vaidya, Sr. Additional
Advocate General for respondents
/State.
CWP No. 3288 of 2019
For the petitioner : Mr. Onkar Jairath, Advocate.
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For the respondents : Mr. Ajay Vaidya, Sr. Additional
Advocate General for respondents
/State.
.
: Mr. Shrawan Dogra, Sr. Advocate
with M/s Tejasvi Dogra, Deepak
Sharma and Harsh Kalta,
Advocates for respondent No. 3.
CWP No. 3184 of 2019
For the petitioners : Mr. Shrawan Dogra, Sr. Advocate
with M/s Tejasvi Dogra, Deepak
Sharma and Harsh Kalta,
Advocates.
For the respondents : Mr. Ajay Vaidya, Sr. Additional
Advocate General for respondents
/State.
Ajay Mohan Goel, Judge (Oral)
CMP No. 13861 of 2019 in CWP No. 2888 of 2019 This application is allowed, as prayed for and the applicant is permitted to intervene in the matter.
CWPs No.2888, 3297, 2748, 3288 and 3184 of 2019.
2. The principal moot issue involved in these writ petitions is as to whether denial of the benefit of "field posting" to Medical Officers (Specialist) posted in different Government Medical Colleges in the State of Himachal Pradesh is violative of Article 14 of the Constitution of India in ::: Downloaded on - 18/03/2020 20:22:54 :::HCHP view of the fact that "Casualty Medical Officers (Specialist)"
posted in a Government Medical College are given the benefit .
of "field posting" for serving as such.
3. Shri R.D. Dhiman, Additional Chief Secretary (Health) to the Government of Himachal Pradesh is present in person in the Court. The Court has discussed the issue in length with him as well as all learned Counsel representing the petitioners, respondents and intervener.
4. Additional Chief Secretary (Health) has informed the Court that the State has amended the existing Policy keeping in view the performance thereof, relating to regulating admissions to various Post Graduation and Super Specialty Courses in Medical Education of the State as well as policy regulating the appointment of Senior/Junior Resident Doctors in the Department of Medical Education and by virtue of the said amendment, now even the Causality Medical Officers posted in Government Medical Colleges shall not be eligible to get the benefit of "field posting" for serving as such.
5. Be that as it may, in my considered view, before the abovementioned amendment in the policy, when posting ::: Downloaded on - 18/03/2020 20:22:54 :::HCHP of a Casualty Medical Officer (Specialist) in a Government Medical College has been treated as "field posting" for the .
purpose of eligibility to be appointed as Senior Resident Doctor, then not treating the services of a Medical Officer (Specialist,) posted as such in the same medical College as 'field posting" is an arbitrary act and the same violates Article 14 of the Constitution of India. Article 14 of the Constitution prohibits classification between similarly situated persons save and except where said classification is based on intelligible differentia which has a nexus with the object to be achieved. The justification which has been given by the State as to why a Casualty Medical Officer (Specialist) is treated at a different pedestral than a Medical Officer (Specialist) is that generally a Specialist Doctor is not willing to serve in the Medical Colleges as "Casualty Medical Officer" and it is to give impetus to Specialist Medical Officers to serve in Medical Colleges, this benefit has been given. In my considered view, this justification is not sustainable in law. It is not in dispute that be it a Casualty Medical Officer (Specialist), or a Medical Officer (Specialist), posting of both these categories in a Medical College is the prerogative of the respondent-State and ::: Downloaded on - 18/03/2020 20:22:54 :::HCHP as an Officer is posted at a place of posting at the behest of the Department concerned, then the Department cannot be .
permitted to discriminate between Medical Officers on the basis of the nomenclature of posting.
6. As far as issue of duties being discharged by Casualty Medical Officers being onerous is concerned, there is no data produced on record by the State to demonstrate that Medical Officers (Specialist) posted in a Medical College do not performs onerous duties. The issue highlighted by the State of unwillingness of Medical Officers to serve in Medical Colleges is an issue of governance, which the State has to deal with at its own level. However, on this ground, the State cannot be permitted to to discriminate between Medical Officers (Specialist) and Casualty Medical Officers (Specialist) posted in a Medical College as there is no intelligible differentia between these two categories, as both of them are Post Graduate Medical Officers and classification, on the basis of nomenclature, has no nexus with the object to be achieved which is appointment of Post Graduate Medical Officer as a Senior Resident in a Medical College.
::: Downloaded on - 18/03/2020 20:22:54 :::HCHP7. Having discussed the matter further with learned Senior Additional Advocate General as well as Additional .
Chief Secretary (Health), in the interest of equity and justice, it is ordered that with regard to the process of appointment of Senior Residents, which is the subject matter of these writ petitions, which process stood initiated in the month of September, 2019, only qua the petitioners, the posting as a Medical Officer (Specialist) in a Medical College shall be treated as "field posting" for the purpose of considering the eligibility of the petitioners herein for the purpose of appointment as Senior Resident, at par with Casualty Medical Officers. It is clarified that said direction shall have no bearing on the amendment which has been incorporated by the State Government in its policy in the month of January, 2020 referred to hereinabove.
8. At this stage, the Court has been informed that postings already stand offered to the various candidates who were selected pursuant to the process which was so undertaken to fill up the posts of Senior Residents. To do justice to such like selected candidates, who are not before the Court, it is ordered that they shall not be disturbed as far ::: Downloaded on - 18/03/2020 20:22:54 :::HCHP as their respective places of posting are concerned and the Government shall be at liberty to offer posting to the .
petitioners who now fall in the zone of eligible candidates pursuant to this order where posts are vacant by applying the ratio of judgment passed by this Court in CWP No. 581 of 2017, titled as Dr. Arti Dhatwalia and others Vs. State of H.P. and ors. and connected matters, decided on 12.04.2017 vis-a-
vis the available vacancies.
9. Another issue raised in these petitions as to whether a Medical Officer can claim the benefit of field posting for the services rendered in Directorate, as prayed for, is kept open.
10. No other issue stands raised.
Accordingly, all these writ petitions stand disposed of in above terms. Pending miscellaneous application(s), if any, also stand disposed of. Interim orders, if any, stand vacated.
(Ajay Mohan Goel) Judge March 12, 2020 (narender) ::: Downloaded on - 18/03/2020 20:22:54 :::HCHP