Himachal Pradesh High Court
Dr.Nikita Verma vs State Of H.P & Others on 6 February, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.274 of 2019
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Decided on: 06.02.2019
Dr.Nikita Verma ...Petitioner.
Versus
State of H.P & others ...Respondents.
Coram
The Hon'ble Mr.Justice Sandeep Sharma, Judge
Whether approved for reporting?
For the petitioner: Mr.Vivek Negi, Advocate vice Mr.Suneet
Goel, Advocate.
For the respondents: Mr.Ajay Vaidya, Senior Additional Advocate
General, for the respondents-State
Sandeep Sharma, Judge (Oral)
By way of present petition, filed under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:
"a) Call for the records pertaining to the case within power and possession of respondent authorities.
b) Concerned respondents authorities may kindly be directed to revise the result strictly in accordance with the selection criteria as laid down in the advertisement and MCI guidelines, which are also being followed at IGMC, Shimla which respect to publications and also accord 10 marks to the petitioner for the gold medal for which she is otherwise entitled to.::: Downloaded on - 07/02/2019 22:00:47 :::HCHP 2
c) Quash the selection of respondent No.5 in view of the submission made in the writ petition.
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d) That this Hon'ble court may kindly direct respondent No.4 University to confer the gold medal to the petitioner forthwith for her academic accomplishments as being the topper of MD Radio Diagnosis."
2. In nutshell, the case of the petitioner, as emerge from the pleadings as well as documents adduced on record, is that she being aggrieved and dissatisfied with the selection of respondent No.5 to the post of Senior Resident (Radio Diagnosis) at Dr. Rajinder Prasad Government Medical College, Kangra at Tanda, filed an Original Application bearing No.771 of 2018 before the H.P. State Administrative Tribunal (hereinafter referred to as "the Tribunal").
3. Record reveals that initially the learned Tribunal on the basis of averments contained in Original Application filed by the petitioner herein, stayed the selection made by respondent No.3, however, subsequently the learned Tribunal vide order dated 30th October, 2018 (Annexure P-5) modified its interim order dated 6th March, 2018 and permitted respondents No.2 and 3 to declare the result for the post of Senior Resident through ::: Downloaded on - 07/02/2019 22:00:47 :::HCHP 3 direct recruitment in the Department of Radio Diagnosis at Dr.R.P. Government Medical College, Kangra at Tanda. Pursuant to the .
passing of the aforesaid order by the Tribunal, the petitioner, who at the relevant time was discharging her duties as Senior Resident (Direct) in the Department of Radiology, was ordered to be relieved.
4. The petitioner being aggrieved and dissatisfied with the passing of order dated 30th October, 2018, filed a writ petition before this Court bearing No.2999 of 2018, titled Nikita Verma vs. State of H.P. & others. This Court having perused the material made available to it, passed the following order on 20 th December, 2018:
"Challenging the selection of Senior Resident in the Department of Radio Diagnosis, the petitioner has filed Original Application No. 771 of 2018 before the Himachal Pradesh Administrative Tribunal (hereinafter referred to as 'the Tribunal'). Earlier the Tribunal passed an interim order on 6 th March, 2018 restraining the official respondents from declaring the result of Direct Recruitment through WalkInInterview and status quo re:
services of the petitioner was directed to be maintained as she was already working as Senior Resident. The said interim order has been modified on 30th October, 2018 and as a result thereof, the petitioner has been relieved from the Department ::: Downloaded on - 07/02/2019 22:00:47 :::HCHP 4 of Radio Diagnosis on 30th November, 2018. The Original Application is now pending before the Tribunal for 4th January, 2019.
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2. In the facts and circumstances, the appropriate recourse would be to request the Tribunal to decide the Original Application on merits on 4th January, 2019 itself. The official respondents are directed to put up a categoric stand regarding the petitioner's entitlement for additional marks for Gold Medal, at the time of final hearing.
r 3. The writ petition is disposed of in the above terms. Pending miscellaneous applications, if any, also disposed of."
5. Pursuant to the aforesaid judgment passed by this Court, matter again came up to be listed before the learned Tribunal, who vide order dated 11th January, 2019 (Annexure P-
10) disposed of the Original Application having been filed by the petitioner as having rendered infructuous.
6. Mr.Vivek Negi, learned counsel representing the petitioner while referring to the judgment darted 20th December, 2018 passed by this Court in CWP No.2999 of 2018, vehemently contended that the learned Tribunal was directed to decide the original application on its merits and the official respondents were also directed to put up their categoric stand regarding the petitioner's entitlement for additional marks for gold medal at the ::: Downloaded on - 07/02/2019 22:00:47 :::HCHP 5 time of final hearing. But careful perusal of the impugned order reveals that the learned Tribunal merely having taken note of the .
fact that the petitioner stands selected as Senior Resident in the Department of Radio Diagnosis at Post Graduate Institute of Medical Education & Research (PGIMER) disposed of the original application filed by her without deciding the controversy on merits and as such, impugned order is not sustainable in the eye of law.
7. Mr.Ajay Vaidya, learned Senior Additional Advocate General, having carefully gone through the order dated 11th January, 2019, though admitted that the same is not in tune with the directions issued by this Court vide judgment dated 20th December, 2018 passed by the Principal Division Bench in CWP No.2999 of 2018, but contended that if the petitioner was interested to contest her case before the Tribunal, Lawyer representing her before the Tribunal should have raised objection at the time of passing of the impugned order and as such, it can be safely inferred that the impugned order is a consent order.
8. Though, having carefully perused the context of impugned order dated 11th January, 2019, passed by the learned Tribunal, this Court finds that no objection whatsoever came to be raised on behalf of the petitioner for disposal of the original application having been filed by her, but definitely the learned ::: Downloaded on - 07/02/2019 22:00:47 :::HCHP 6 Tribunal was under an obligation in terms of the judgment passed by the Principal Division Bench in CWP No.2999 of 2018 to .
decide the original application having been filed by the petitioner on its merits. Otherwise also, it has not been specifically recorded by the Tribunal while passing the impugned order, referred to hereinabove, that the petitioner is not opposed to disposal of her original application, rather very import of the impugned order itself suggests that the factum with regard to selection of the petitioner as Senior Resident in the Department of Radio Diagnosis at PGIMER weighed heavily with the Tribunal while passing the impugned order. Needless to say that the petitioner being a dominus litis is/was well within his/her rights to decide whether to continue with the proceedings lodged at her behest or not.
9. Consequently, in view of the above, present petition is allowed and the impugned order dated 11th January, 2019, passed by the learned Tribunal is quashed and set aside. The original application is restored to its original number and position with a direction to the Tribunal to decide the original application afresh strictly in terms of judgment/order dated 20th December, 2018, passed by Principal Division Bench of this Court in CWP No.2999 of 2018. Having taken note of the fact that the matter ::: Downloaded on - 07/02/2019 22:00:47 :::HCHP 7 pertains to the appointment of Senior Resident doctor at a Medical College, this Court hopes and trust that the Tribunal shall .
decide the original application expeditiously. Learned counsel representing the parties undertake to remain present before the learned Tribunal on 8th March, 2019, to enable it to proceed with the matter in terms of the directions contained in the instant judgment.
Pending application(s), if any, also stand disposed of.
( Sandeep Sharma ), Vacation Judge February 06, 2019 ( vt ) ::: Downloaded on - 07/02/2019 22:00:47 :::HCHP