Punjab-Haryana High Court
Dr. Varun Nayyar & Others vs State Of Punjab & Others --Respondents on 20 December, 2013
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
CWP No. 22953 of 2012 (O&M)
Judgement reserved on 13.12.2013.
Date of Decision: 20.12.2013.
Dr. Varun Nayyar & others --Petitioners
Versus
State of Punjab & others --Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.
Present:- Mr. G.S. Attariwala, Advocate for the petitioners.
Mr. Aman Bahri, Addl. A.G., Punjab for
respondents no.1 to 3.
Mr. Parminder Singh, Advocate for
respondents no.5 and 7.
Mr. Ramandeep Singh, Advocate for
respondents no.6 and 8.
Mr. Narinder Vadhera, Advocate for
respondent no.9.
Mr. H.S. Sirohi, Advocate for
respondents no.11 and 12.
***
TEJINDER SINGH DHINDSA.J The petitioners raise a limited challenge to the order dated 25.10.2012 (Annexure P-6) in the light of which candidates belonging to the General Category and duly selected and appointed as Medical Officers (Dental) under the Department of Health & Family Welfare, State of Punjab, have been granted extension in joining time so as to enable them to complete their Post Graduation Degree/Course.
Brief facts leading to the filing of the instant writ petition may be noticed.
Lucky 2013.12.21 11:42 I attest to the accuracy and integrity of this document chandigarh CWP No. 22953 of 2012 (O&M) -2- The Directorate of Health & Family Welfare, Punjab issued public notice dated 26.7.2011 inviting applications from eligible candidates for filling up various posts including 114 posts of Medical Officers (Dental). Out of such total 114 posts, 52 were to be filled up from amongst the General Category candidates. The essential and professional qualification prescribed was Bachelor of Dental Surgery (B.D.S Degree) from a recognized university or institution or any equivalent degree recognized by the Dental Council of India. The second requirement was for the prospective candidates to be registered in Part-A of the Register of the State Dental Council i.e. Punjab Dental Council.
It is stated that the petitioners, who all belong to the General Category were duly qualified for the post of Medical Officer (Dental) and as such, submitted their applications within the stipulated time frame. On account of their eligibility, they were permitted to participate in the selection process comprising of a written test and followed by a process of counselling. A provisional merit list pertaining to General Category candidates was uploaded on the website of the respondent-authorities in which the names of the petitioners appeared at Sr. Nos.57, 58, 60 and 62 respectively. Subsequently, the final merit list of 52 General Category candidates for the post of Medical Officer (Dental), was issued on 8.9.2012.
The petitioners are aggrieved of the order dated 25.10.2012 at Annexure P-6, whereby amongst others, 8 candidates belonging to the General Category and whose names figure in the final merit list and as such, stand duly selected for the post in question, have been granted extension in joining time for periods ranging from 9 months to 3 years to facilitate the completion of their Post Graduate studies.
CWP No. 22953 of 2012 (O&M) -3-
Learned counsel appearing for the petitioners, would at the very outset, submit that respondents no.5, 6 and 7 have already joined as Medical Officers (Dental) and as such, the present writ petition qua them, has been rendered infructuous. As such, the writ petition would survive only as regards the official respondents and private respondents no.8 to 12.
Learned counsel for the petitioners would vehemently contend that the action of the respondent-authorities in granting extension time to the selected candidates and thereby deliberately keeping posts of Medical Officers (Dental) vacant, would be contrary to public interest. It is submitted that in the State of Punjab there is an acute shortage of doctors and the denial of appointment to the candidates next in order of merit including the petitioners to the posts in question, is arbitrary and violative of Article 14 of the Constitution of India.
Per contra, State action is sought to be justified on the reasoning that by granting extension to the private respondents, the department would be in a position to avail of the services of such candidates who would have acquired the Post Graduate qualification and thus, would be more meritorious and "academically advanced". That apart, heavy reliance is placed upon the order dated 24.7.2013 in terms of which a Division Bench of this Court dismissed CWP No.23656 of 2012 titled as Balwinder Singh Vs. State of Punjab in which a challenge to the same very order dated 25.10.2012 granting extensions to candidates to join as Medical Officers (Dental), had been raised. Such order passed in Balwinder Singh's case (supra) stands appended as Annexure R-1 along with the written statement filed on behalf of respondents no.1 to 3. CWP No. 22953 of 2012 (O&M) -4-
Even though, separate written statements have been filed on behalf of respondents no.5 and 7, 6 and 8 and respondent no.9, yet, the stand taken is common. It is submitted on their behalf that the selection process for the posts of Medical Officers (Dental) already stands concluded and appointment letters stand issued. Counsel appearing for the private respondents would state in unison that since the names of the petitioners did not figure in the final merit list and as no waiting list had been prepared, there would be no basis for any relief to be granted to them.
Learned counsel for the parties have been heard at length. The issue raised in the present writ petition already stands examined and adjudicated upon on previous occasions by this Court. A Division Bench in the case of Dr. Maninder Kaur Vs. State of Punjab & others, CWP No.15839 of 1996 decided on 11.3.1997 had negated the plea of an M.B.B.S doctor seeking extension in joining period to P.C.M.S Class- I as Medical Officer to complete the Post Graduate studies and termed such grant of extension in joining time as "evil practice" which would result in serious injury to public interest as people would be deprived of the services of the Medical Officers. It had been held as follows:-
"In the past a number of candidates were given extension in the joining time, which resulted in serious injury to the public interest because the people were deprived of the services of the Medical Officers. The Government was forced to keep the posts vacant for those who were doing post graduation courses. This resulted in complete frustration of the government's efforts to streamline the medical services in the rural areas. The action of the government to do away with the evil practice of granting extension in the joining time will go a long way to redeem the grievances of the common man against the lack of medical facilities."CWP No. 22953 of 2012 (O&M) -5-
Such view was reiterated by a subsequent Division Bench of this Court in Neeraja Puri Talwar Vs. State of Punjab, 1993 (3) R.S.J
382. Applying the dictum as laid down in the case of Dr. Maninder Kaur (supra), the action of the respondent-authorities in granting extension as regards joining time in favour of respondents no.8 to 12, cannot sustain.
Even otherwise, it would be apposite to note that on the one hand the State Govt. is deliberately keeping the posts of Medical Officers (Dental) vacant and not making offers to the candidates next in order of merit, yet, on the other hand has taken the following stand in the written statement:-
"It is not the intent of the Government to keep the seats, offered to such doctors who obtain extension beyond one year, vacant as it is expected that retirement and promotion during the intervening period will allow enough vacancies to be generated to accommodate candidates given extension on their return to join duty."
Clearly the State Govt. itself is taking a categoric stand that such doctors who have obtained extension in joining time beyond one year would be accommodated on their return to join duty against vacancies which have arisen on account of retirements and promotions that occurred during the intervening period. As such, it is difficult to fathom as to why candidates next in order of merit have not been offered appointment against the vacant posts of Medical Officers (Dental) that were advertised in pursuance to the public notice dated 26.7.2011. The action smacks of arbitrariness.
CWP No. 22953 of 2012 (O&M) -6-
The reliance placed upon the Division Bench order in Balwinder Singh's case (supra) is wholly misplaced. It is true that in CWP No.23656 of 2012 a prayer seeking quashing of the order dated 25.10.2012 had been raised. However, such writ petition had been dismissed holding a Public Interest Litigation on such issue to be not maintainable. The order dated 24.7.2013 passed by the Division Bench while dismissing CWP No.23656 of 2012 cannot be construed as an order upholding the validity of the order dated 25.10.2012.
For the reasons recorded above, the instant writ petition is allowed. The impugned order dated 25.10.2012 (Annexure P-6) is set aside to the extent of grant of extension in joining time to private respondents no.8 to 12. It is directed that the petitioners be offered appointment to the post of Medical Officer (Dental) against the vacant posts earmarked for the General Category. Such offer would be made strictly as per merit determined in the selection process and if any other candidate has secured a higher merit position than the petitioners, then, such candidate would have a prior claim.
In so far as respondents no.8 to 12 are concerned, since they have executed bonds of an amount up to Rs.15 lacs in pursuance to the order dated 25.10.2012, it would be open for the respondent-authorities to permit them to join against other unfilled posts after completion of their Post Graduate studies or against vacancies that arise on account of promotions/retirements that would occur during the intervening period. Such protection is being afforded to respondents no.8 to 12 by following the view taken by a Coordinate Bench of this Court in the order dated 10.3.2010 while deciding CWP No.12839 of 2009 titled as Dr. Sohrab Arora and CWP No. 22953 of 2012 (O&M) -7- others Vs. State of Punjab and others and which were in the following terms:-
"Having heard learned counsel for the parties and following the view taken by this Court in the cited decisions, it is apparent that no direction to the respondents to keep the posts unfilled for the petitioners till they complete their Post Graduate Diploma/Degree courses, can be issued. However, owing to the fact that even according to the respondents, the posts of Medical Officers are lying vacant at large scale, the respondent-authorities shall be at liberty to permit the petitioners to join against the other unfilled posts after completion of their PG diploma/degree courses, provided that the petitioners apply in writing within a period of one month from the date(s) of completion of their Post Graduate Diploma/Degree. Suffice it to observe that such an application shall be considered by the respondents sympathetically and keeping the fact in view that additional appointments would also serve the larger public interest."
Writ petition is allowed in the aforesaid terms.
(TEJINDER SINGH DHINDSA) JUDGE December 20, 2013.
lucky Whether to be reported? Yes