Punjab-Haryana High Court
Dr. Manu Gupta vs State Of Punjab And Others on 25 July, 2013
Bench: Sanjay Kishan Kaul, Augustine George Masih
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of Decision:25.7.2013
1. LPA No. 1043 of 2013 (O/M)
Dr. Manu Gupta ....... Appellant
Versus
State of Punjab and others ..... Respondents
2. LPA No. 1044 of 2013 (O/M) Dr. Gagandeep Sharda ....... Appellant Versus State of Punjab and others ..... Respondents
3. LPA No. 1050 of 2013 (O/M) Dr. Kanwerjit Singh ....... Appellant Versus State of Punjab and others ..... Respondents
4. LPA No. 1053 of 2013 (O/M) Dr. Amandeep and another ....... Appellants Versus State of Punjab and others ..... Respondents 5. LPA No. 1065 of 2013 (O/M) Gajinder Pal Singh Kaler ....... Appellant Versus State of Punjab and others ..... Respondents LPA No. 1043 of 2013 and connected cases -2-
6. LPA No. 1068 of 2013 (O/M) Dr. Kamini Singla and another ....... Appellants Versus State of Punjab and others ..... Respondents 7. LPA No. 1069 of 2013 (O/M) Dr. Gagandeep Kaur ....... Appellant Versus State of Punjab and others ..... Respondents 8. LPA No. 1070 of 2013 (O/M) Dr. Vishal Brar ....... Appellant Versus State of Punjab and others ..... Respondents 9. CWP No. 13604 of 2013 (O/M) Rakesh Kumar and another ....... Petitioners Versus State of Punjab and others ..... Respondents 10. LPA No. 1051 of 2013 (O/M) Dr. Anoop Kumar ....... Appellant Versus State of Punjab and others ..... Respondents 11. CWP No. 14833 of 2013 (O/M) Dr. Mohammad Aamir and others ....... Petitioners Versus State of Punjab and others ..... Respondents LPA No. 1043 of 2013 and connected cases -3- 12. CWP No. 13305 of 2013 (O/M) Dr. Harmandeep Grewal ....... Petitioner Versus State of Punjab and others ..... Respondents 13. CWP No. 14947 of 2013 (O/M) Barinderjit Singh ....... Petitioner Versus State of Punjab and others ..... Respondents
CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present:- Mr. Deepak Sibal, Advocate, for the appellant in LPA No. 1043 of 2013.
Mr. Anil Chawla, Advocate, for the appellants/petitioners in LPA No. 1065 and CWP No. 13604, 14947 of 2013.
Mr. D.S. Patwalia, Advocate, with, Mr. Salil Sabhlok, Advocate, for the appellants in LPAs No. 1053, 1068, 1069 and 1070 of 2013.
Mr. Vipin Mahajan, Advocate, for the appellants in LPA No. 1053 of 2013.
None for the appellants in LPAs No. 1050 and 1051of 2013. Mr. Liaqat Ali, Advocate, for the petitioners in CWP No. 14833 of 2013 None for the petitioner in CWP No. 13305 of 2013.
Mr. Guridner Pal Singh, Additional Advocate General, Punjab. Mr. Gurminder Singh, Advocate, for intervenors.
Mr. Ashish Rawal, Advocate, for Baba Farid University. Mr. Sukhjinder Singh and Mr. Hitesh Sood, Advocates, for respondent No. 4 in LPAs No. 1043, 1044 and 1065 of 2013.
LPA No. 1043 of 2013 and connected cases -4- SANJAY KISHAN KAUL, CHIEF JUSTICE (ORAL) CM No. 3362 of 2013 in LPA No. 1065 of 2013 Leave is granted to place on record experience certificate as Annexure-A-1.
Application is accordingly allowed.
Main case The Rural Medical Officers (RMOs) who were recruited on contractual basis to man Subsidiary Health Centres of a particular Zila Parishad are seeking parity with the doctors recruited via PCMS route on the basis that their initial services as contractual have been regularized from 1.5.2011. This parity is being sought for purposes of admission to the post graduate courses under the percentage of State quota.
The State Government felt a need of doctors (Medical Service Providers) at the Subsidiary Health Centres to augment the medical assistance in rural areas and sought recruitment of such doctors in April 2006. These appointments were sought to be made on contractual basis and the service conditions to be governed by the terms of contract. The recruitment was through a constituted selection committee chaired by the Chairman, Zila Parishad. The doctors so recruited continued to perform their duties and over a period of time, the question of their regularization into service received the attention of the State Government. A decision was thus, taken on 1.5.2011 to regularize the appointment of these doctors on certain terms and conditions. The terms and conditions of these appointments as specified in the appointment letter issued to these doctors in 2011 are as under :-
"1. This appointment will be considered regular w.e.f.
1.5.2011.
LPA No. 1043 of 2013 and connected cases -5-
2. You will get no benefit (notional or otherwise) of any previous service rendered.
3. Your services will be as per Punjab Civil Services (Rationalization of Certain Conditions of Service) Act, 2011.
4. You will be given basic pay scale of the relative cadre and these will be as per Punjab Civil Services (Rationalization of Certain Conditions of Service) Act, 2011.
5. The new defined contribution pension scheme 2004 will be applicable to you and their accounts will be maintained by Zila Parishad.
6. That the process of formulating the service rules is under thought process under the Punjab Panchayati Raj Act, 1994 Section 227(2) and Section 196 and your services will be under the new service rules.
Till the times these rules are not prepared, your services will be governed by Zila Parishad Karamchari Service Rules Punjab Panchayat Samiti and Zila Parishad Service Rules, 1965 provided these are not in conflict with the provision of Punjab Civil Services (Rationalization of Certain Conditions of Service) Act, 2011 and decisions of Council of Ministers. In case of conflict Punjab Civil Services (Rationalization of Certain Conditions of Service) Act, 2011 and the decision of Council of Ministers will supersede and the rules will be deemed to be modified as such.
7. Before appointment you will have to give a self declaration that you will follow the service rules, that your conduct and character is satisfactory, that you have not been convicted for any criminal LPA No. 1043 of 2013 and connected cases -6-
offence by any court, that you have not been declared unfit for service by any Government/Board/Corporation/Semi Government Institute and that you will follow the Constitution of India and that you don't have more than one living wife or husband.
8. Matriculation with Punjabi as subject is compulsory.
9. Any decision by any Hon'ble Court in any petition regarding your appointment will be binding on you.
10. Your character verification will be conducted by Police department and if anything against you is found then your services will be terminated.
11. This appointment is on a temporary/provisional vacant post, there is no final commitment regarding this service with you. Your services can be terminated without notice that if no such vacant post is available where you can be permanently posted.
12. That without obtaining prior permission, you can not go for higher education.
13. Before appointment you will have to deposit your original certificates with Zila Parishad. These will be scrutinized by a competent officer. If at any stage these certificates or documents are found to be false then your services will be deemed to be terminated without notice."
The other set of doctors, who have been recruited through the PCMS route, were not before the learned Single Judge in the writ petitions filed earlier by the RMOs, but were permitted to intervene in the LPAs before us. Their recruitment has been through a competitive examination conducted by the Punjab Public Service Commission.
LPA No. 1043 of 2013 and connected cases -7- The dispute pertains to the admission to the Post-Graduate Degrees/Diploma Courses Session 2013 in the Health Sciences Institutions (Medical/Dental) in the State of Punjab. Out of the seats available, there is a 50% quota each at All India Level and State Level. Out of this State level quota, there is a further bifurcation whereby 60% of the seats are meant for in- service doctors with the State Government, while 40% seats are open. The condition for being eligible for 60% seats has been set out in the notification dated 5.4.2013 as under :-
"a) The eligibility requirements are as under :-
(i) Regular PCMS employee; and
(ii) Have completed four years' service in very difficult (Category D) area or six year service in difficult (Category C) or on appropriate combination of both and in case of candidates who have completed 5 year of service as on 01.01.2012, they should have completed 2 years of service in most difficult areas or 3 years of service in difficult areas; and RMO once they are selected in PCMS, they will be given benefits of rural service rendered by them as RMO's under Zila Parishads.
(iii) Have cleared the probation period; and
(iv) Whose service record is good; and
(v) After completion of Post Graduate Course have minimum of 10 years' service left; and
(vi) There is no vigilance/departmental/disciplinary inquiry pending against the employee".
Reading of the aforesaid eligibility condition shows that the seats are open only to the regular PCMS employees and the RMOs are not eligible for the same. The grievance agitated by the RMOs is that their services having been regularized in the year 2011 and they having completed 2 years' LPA No. 1043 of 2013 and connected cases -8- probation period are at par with the PCMS doctors and thus, the condition stipulated confining the benefit of the 60% State seats to only PCMS employees is arbitrary, irrational and is liable to be struck down or in the alternative to be read down to include the RMOs who are equally working as doctors with the State Government and thus, satisfy the parameters of in- service doctors. It is infact their say that insofar as other conditions laid down are concerned, they are eligible/willing to comply with the norms for the same.
On the other hand, the common case of the State Government and the PCMS doctors is that they form a separate category with intelligible differentia and thus, the benefit given exclusively to PCMS doctors cannot be faulted.
The LPAs arise out of the writ petitions filed by the RMOs, which were dismissed by the learned Single Judge. Some of the writ petitions raising the same issue are thereafter clubbed with these LPAs.
We had heard the matter at length on 23.7.2013. We were of the view that an endeavour ought to be made to find a solution to the issue at hand because the Additional Advocate General conceded that both the sets of the doctors are their employees and they have no partiality to the one or the other category except qua the matter of policy decision. The other factor which weighed with us was that there were more number of seats available in the 60% State quota than people eligible from the PCMS doctors though, of course, if this part of 60% is not filled in, the seats don't go waste, but are made available to the 40% open quota. We had asked a meeting to be chaired by the Chief Secretary with the concerned officers to examine these issues.
LPA No. 1043 of 2013 and connected cases -9- An affidavit has been filed in Court before us by the Principal Secretary to Government of Punjab, Department of Health and Family Welfare. This affidavit is in pursuance to the Minutes of Meeting presided over by the Chief Secretary, Punjab, on 24.7.2013, where the Financial Commissioner, Rural Development and Panchayats, Principal Secretary, Health and Medical Education and other officers of both the departments were present. The affidavit states that after detailed deliberation, it was concluded that given the nature of duties that RMOs are to perform, there is no rationale in allowing them PG seats under the Government quota and for the State Government to finance their PG education, while there was merit in allowing this quota in the present form to the PCMS doctors who are required to man secondary level institutions requiring specialist services. The meeting thus, opined that as things stand today, it would not be desirable to allow the benefit to PG quota seats to the RMOs.
A perusal of the Minutes of Meeting shows that the facts which weighed in coming to this decision and material in support thereof. It has been stated that the Health Department of the State provides services through District Hospitals, Sub Divisional Hospitals, Community Health Centres (at block level) and Primary Health Centres (for a population of 30,000). Prior to 2006, the Health Department also provided services at village level through Subsidiary Health Centres, but post 73rd Amendment to the Constitution regarding devolution of powers to Panchayati Raj Institutions, the State Government transferred the Subsidiary Health Centres to the Zila Parishads in the year 2006. These Subsidiary Health Centres provide basic OPD services to the rural population manned by MBBS doctors, who were initially known LPA No. 1043 of 2013 and connected cases -10- as Service Providers and thereafter RMOs, whose services had been regularized though their appointment was earlier on contractual basis. All doctors with post graduation qualifications are required and posted in various institutions under the Health Department and Medical Education Department to provide secondary and tertiary services. The Subsidiary Health Centres or other institutions under the Zila Parishads are not required to provide services, which would entail post graduate qualification for the doctors. The doctors who come through 60% State quota route have their cost of medical education and full salary paid including increments as due during this three year period.
Another aspect emphasized in the Minutes of Meeting is that the eligibility requirements include rural service of different periods of time depending upon the nature of the posting. This decision of having a minimum rural service is stated to be based on the concept of larger public interest.
The last aspect noted in the minutes is that infact the decision taken reiterates what was the earlier decision taken in the meeting chaired by the then Chief Secretary in September 2011 for the same purpose and copies of those minutes have also been annexed.
Learned counsels for RMOs have strenuously contended that the RMOs are doctors who served the population at the grass root level and thus, really are serving the requirement of medical health to the rural population which has been made pre-requisite as per the eligibility requirement. It is thus, their submission that this aspect needs to be emphasized and is the focus of the route to the post graduate course rather than the stream from which the doctors come from. It is submitted that the PCMS doctors infact periodically leave the service by even paying bond because it is more lucrative for them LPA No. 1043 of 2013 and connected cases -11- and this is what initially compelled the State Government to recruit RMOs for service at the village level. It is thus, submitted that these doctors having served for a number of years (7 years), having been regularized after 5 years' of service and having completed the probation, should not be denied the opportunity of a level playing field with the doctors of PCMS as they seek no preference. They are willing to compete in the process of counselling and such of them who meet the requirement should be permitted to join the post graduation courses through the State quota route. We may note as informed by the respondents today that in the process of counselling there are 14 doctors from this route who would be eligible, the permission to counselling having been granted through various interim orders. It is submitted that in view of shortage of the PCMS doctors especially because of their periodic resignations, about 1300 posts from this cadre were taken out to be utilized for appointment of RMOs in the year 2006. Thus, the alternative plea is that they are really in the same cadre though the recruitment process would be different for them and on this ground they are liable to be treated at parity with the PCMS doctors.
Learned counsels have also invited our attention to the notification dated 1.12.2011 issued by the State Government, Department of Rural Development and Panchayats making rules regulating the recruitment and the conditions of the persons appointed to the Punjab Panchayati Raj Rural Medical (Group-A) Service. In terms of Rule 3, the service comprises of district wise cadre consisting of posts as specified in each district as set out in Appendix 'A'. The appointing authority is the Director of Rural Development on the recommendation of selection committee presided over by the LPA No. 1043 of 2013 and connected cases -12- Chairman, Zila Parishad. The Members of the service are entitled to the same pay and allowances as may be authorized by the Punjab Government in the Department of Health and Family Welfare. The qualification is a degree of MBBS and a merit list is to be prepared. It is thus, submitted that RMOs are now being governed by these rules, which should at least put them at parity with the PCMS doctors.
On the other hand, the common case of learned counsels for the private respondents and State is that what this Court is dealing is not a matter of promotion but giving a preferential right for acquiring post graduate degree to doctors to assist the State in performing its duty for giving better medical services to the population at large. The two services are different. The recruitment was different. Mere regularization will not put them at par. Their service conditions are different. In case of PCMS doctors, it is a state cadre while in case of RMO doctors, it is a district cadre. Further it is not as if RMO doctors have been shut out from acquiring post graduate qualification as they can either go through PCMS route of clearing the examination or being eligible on merit in the 40% quota which is open with weightage being provided for their rural service as per Rule 9. It is submitted that any endeavour to accommodate the RMO doctors, even if seats are vacant, would crate a complication as these seats do not lapse but go to the open quota and thus, those candidates who are coming through the open quota would be prejudiced reducing the number of their seats. It is also submitted that the question of PCMS doctors getting their preferential discipline in the post graduate course would be affected by any accommodation to the RMO doctors. The PCMS doctors having come through a competitive route, having LPA No. 1043 of 2013 and connected cases -13- worked in that service and performed their rural posting requirement, should not now be prejudiced by including the doctors who came through a contractual route, albeit a selection process, merely on the ground of their services having been subsequently regularized when there are so many distinguishable criteria as set out.
The most important aspect sought to be emphasized by the respondents is that this is a matter of policy decision taken by the State Government which does not fall in the category of a decision which no reasonable authority could take so as to hit by the Wednesbury principle. The State Government is to look to the utility of giving the privilege to a doctor to do the post graduation course through a State funded route and holding otherwise would amount to compelling the State to fund a category of doctors who, in the wisdom of the State Government, do not need a post graduation degree to perform the task assigned to them for which they have been recruited, especially when it is not as if they have been shut out from the possibility of acquiring post graduate degree as they can go through an open quota route.
We have heard the the learned counsels for the parties at length today also. The reason being that in our view it has a material bearing on the future prospects of these doctors both of whom have been working with the State Government and it is this fact which weighed with us while referring the matter back to the Chief Secretary to see if a viable solution was possible where doctors of different categories can be accommodated especially taking into consideration the number of seats available. That unfortunately has not been possible. Thus, we have to proceed on the merits of the controversy.
LPA No. 1043 of 2013 and connected cases -14- We are afraid that some sympathy of ours for the cause of the appellants cannot translate itself into a legal right in their favour so as to entitle them to a favourable judicial verdict. The first aspect which weigh with us is the issue of policy decision. This decision has not only been taken once in 2011 but at our request the matter has been re-examined at the highest level the second time but met with the same fate. It cannot be said that this policy decision is so bereft of any basis or is so arbitrary and illegal that it has to be struck down. The rationale given, especially in the affidavit filed today in Court, is that what the two private parties are fighting for is only to have post graduation education at the expense of the State. It is not an issue of promotion of a person or parity from different cadres or equal opportunity for further promotion to posts. The State Government in its wisdom is of the view that keeping in mind the cadres created, the deployment of these doctors as per the cadre, and the different modes of recruitment entitle them to get the benefit of State funding of post graduate education only for the PCMS doctors. As we have noticed earlier that the PCMS doctors are deployed at overall state level, while RMOs are deployed only at district level. It is not as if quality medical help is not to be provided in the rural areas but there are different periods/stages of medical assistance requiring different medical centres. The deployment of the RMOs took place at the base level centres and they cannot be posted inter district. It has already been stated in the Minutes of Meeting that the Health Department of State provides service through District Hospitals, Sub Divisional Hospitals, Community Health Centres and Primary Health Centres which is only qua the Subsidiary Health Centres at the Zila Parishad level that the RMOs were deployed for. Thus, it does not dis-
LPA No. 1043 of 2013 and connected cases -15- entitle them from improving their prospects by acquiring post graduate degree as the open quota route is available to them. The second option, of course, with them is to go through the PCMS route. We are thus, of the view that the State Government cannot be compelled to fund their post graduate medical education.
The second aspect which weighs with us is that the recruitment of both the categories of doctors were actually for different purpose through different routes. The RMOs, when joined service, knew that their appointment is on contractual basis and that too at the base level of the medical centres. This is another matter that their services were regularized subsequently. It is not as if on regularization, two cadres of doctors merged. This is apparent from the fact that the terms and conditions of service are not the same for both of them. Thus, the RMOs cannot claim parity only on the basis that both the categories of persons are MBBS and all doctors should be treated alike. No doubt to function as a doctor, one must have a basic qualification of MBBS, but their recruitment is through a different system and their deployment is for different purposes and at different levels of health care policy of the State.
The fact that there are now statutory rules governing the services of the RMOs again would not put them on a higher pedestal to equate them with PCMS doctors as that is not a necessity arising out of their regularization. It is not our endeavour to state that the assistance being provided by the RMOs to the system is inferior or that they are the doctors who should be put at inferior level. The question before us is actually limited to the facility of providing opportunity for post graduate medical education by funding through LPA No. 1043 of 2013 and connected cases -16- a State Government department. For this purpose, the State Government has considered it appropriate that keeping in mind the requirement of the State and the deployment of these doctors, the State Government should be funding only the PCMS doctors through 60% State quota, giving all others to compete through 40% quota which would include the seats which would be available out of 60% quota seats remaining vacant.
Since the phraseology used in the Minutes of the Meeting was that 'as things stand today', we presume that it is based on the current situation which does not preclude the State Government for having second look on the matter in issue for future recruitment if the exigencies of health care facilities of the State requires the State Government to do so.
The result is, we find no infirmity in the order of the learned Single Judge or merit in the writ petitions clubbed with these matters and are thus, constrained to dismiss the same leaving the parties to bear their own costs.
Interim orders stand vacated.
We, however, clarify that this will not preclude the RMOs from being considered for the current year in the open quota as per their merit giving due weightage of their rural service as in the prospectus.
The record produced by the University in sealed cover has been perused by the Court and returned back to the counsel duly sealed.
(SANJAY KISHAN KAUL) CHIEF JUSTICE (AUGUSTINE GEORGE MASIH) JUDGE 25.7.2013 sjks Sharma Sanjiv Kumar 2013.07.26 19:01 I attest to the accuracy and integrity of this document Chandigarh