Himachal Pradesh High Court
D/O Dr. C.R. Verma vs Dr. R.N. Bhatnagar And Another on 13 August, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 13TH DAY OF AUGUST, 2021
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
.
&
HON'BLE MR. JUSTICE SATYEN VAIDYA.
CIVIL WRIT PETITION No. 907 OF 2021
Between:-
DR. NIKITA VERMA
D/O DR. C.R. VERMA,
RESIDENT OF SHEETAL KUNJ ESTATE,
P.O. KAMLA NAGAR, SANJAULI,
SHIMLA - 171 006 (H.P.) ......PETITIONER
(BY SH. SUNIL MOHAN GOEL, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH,
THROUGH ADDITIONAL CHIEF SECRETARY (HEALTH)
TO THE GOVERNMENT OF HIMACHAL PRADESH.
2. DIRECTOR OF HEALTH SERVICES,
HIMACHAL PRADESH.
3. DR. SUNIL SHARMA, SON OF NOT KNOWN,
MEDICAL OFFICER SPECIALIST,
CHC NALAGARH, DISTT. SOLAN, (H.P.)
4. DR. CHARU SMITA THAKUR,
W/O DR. ARUN CHAUHAN, R/O SHIVAM REGENCY,
BLOCK e. FLAT NO. 8, KAMLANAGAR, BHATTAKUFFER,
SHIMLA - 171 006, PRESENTLY POSTED AS MEDICAL
OFFICER (RADIOLOGIST), DEEN DAYAL HOSPITAL, SHIMLA,
DISTRICT SHIMLA, H.P.
....RESPONDENTS.
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2
(SH. AJAY VAIDYA, SENIOR ADDITIONAL ADVOCATE
GENERAL, FOR RESPONDENTS NO. 1 AND 2.
SH. DUSHYANT DADWAL, ADVOCATE, FOR RESPONDENTS
NO. 3 AND 4.).
RESERVED ON : 10.08.2021.
.
DECIDED ON : 13.08. 2021.
__________________________________________________________________
This petition coming on for orders this day, Hon'ble
Mr. Justice Satyen Vaidya, passed the following:
ORDER
By way of instant petition, petitioner has prayed for the following substantive reliefs:
a) That this Hon'ble Court may be pleased to issue writ of certiorari quashing the letter dated 6.2.2021 (Annexure P-4) whereby the post of Assistant Professors in the Department of Radiology has been ordered to be filled up by way of promotion and the necessary documents had been called from the requisite heads and further Annexure P-4 letter dated 15.02.2021.
b) That this Hon'ble Court may further be pleased to issue writ of mandamus directing the respondents not to fill up the post of Assistant Professor in the Department of Radiology by way of promotion, and be further directed to fill up the post of Assistant Professor in the Department of Radiology IGMC, Shimla by way of direct recruitment.
c) That this Hon'ble Court may be pleased to issue writ of mandamus directing the respondent not to hold any DPC for promotion to the post of Assistant Professor in the Department ::: Downloaded on - 31/01/2022 22:52:31 :::CIS 3 of Radiology, IGMC, Shimla considering private respondent No.3 and further not to recommend private respondent No.3.
2. The case of petitioner is that she is qualified to be appointed as Assistant Professor in the Department of Radiology, .
Indira Gandhi Medical College (for short 'IGMC'), Shimla, where presently a post of Assistant Professor is vacant and available. As per petitioner, she is M.D. Radio-diagnosis and has three years teaching experience as Senior Resident at RPGMC, Tanda and PGI (MER), Chandigarh.
3. The Medical Education and Research is one of the wings of the Department of Health and Family Welfare, Government of Himachal Pradesh and is headed by the Director, Medical Education and Research. The teaching faculty of various Medical Colleges in the State of Himachal Pradesh are under the administrative control of the Director, Medical Education and Research.
4. The Department of Medical Education and Research has notified Himachal Pradesh Medical Education Service Rules, 1999 (for short 'Rules') which have been amended from time to time.
Annexure -1, appended to the Rules provides for Recruitment and Promotion Rules (for short R&P Rules) for Himachal Pradesh ::: Downloaded on - 31/01/2022 22:52:31 :::CIS 4 Medical Education Service. As per the R&P Rules for the post of Assistant Professor (Class-I Gazetted) prescribed method of recruitment is from two sources i.e., 50% by promotion failing .
which by direct recruitment and 50% by direct recruitment in the manner as specified in Appendix-B. Essential and desirable qualifications for the post of Assistant Professor have been detailed at serial No.3 of Appendix-B as under:
"3. Assistant Professor:
Essential qualifications: -
(i) A recognized medical qualification included in the first or second Schedule or Part-II of the third Schedule (other than Licentiato qualifications) to the Indian Medical Council Act, 1956. Holders of Educational Qualification included in Part-II of the Third Schedule should also fulfill the condition stipulated in sub-section (3) of Section 18 of Indian Medical Council Act, 1956.
(ii) A post-graduate degree in the concerned specialty mentioned in Part-A of Annexure-II or its equivalent qualifications.
(iii) Atleast 3 years teaching experience as Lecturer/Registrar/Demonstrator/Resident after doing post-graduation in the concerned specialty in any recognized Medical College.
Desirable qualifications:- (i) Knowledge of customs, manners and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh.
(ii) Publication of research papers in Index Journals."
5. Presently, IGMC, Shimla has five sanctioned posts of Assistant Professors in the Department of Radiology. After ::: Downloaded on - 31/01/2022 22:52:31 :::CIS 5 promotion of Dr. Shikha Sood to the post of Associate Professor, one post of Assistant Professor has fallen vacant in the said Department. Remaining four sanctioned posts of Assistant .
Professors are manned by different incumbents.
6. It is on account of the vacancy of one post of Assistant Professor in the Department of Radiology, IGMC, Shimla that the controversy has arisen. Respondents No. 1 and 2 have initiated the process to fill the above noted vacant post of Assistant Professor in the Department of Radiology, IGMC, Shimla by way of promotion.
7. Petitioner is aggrieved against the action of respondents No. 1 and 2, whereby the process for filling up the vacant post of Assistant Registrar in the Department of Radiology, IGMC, Shimla by promotion has been initiated. Petitioner has questioned this process by way of instant petition on the specific ground that, as per the applicable R & P Rules vacant post of Assistant Professor in the Department of Radiology, IGMC, Shimla is required to be filled by direct recruitment. Petitioner being eligible for appointment to the post in question intends to compete for the same. According to petitioner, the method of recruitment as per R&P Rules for the post of Assistant Professor in Himachal Pradesh Medical Education Service is 50% by promotion, failing which by ::: Downloaded on - 31/01/2022 22:52:31 :::CIS 6 direct recruitment and 50% by direct recruitment in the specified manner. Contention of the petitioner is that out of first four sanctioned posts, two were filled by promotion and two by direct .
recruitment. 5th post was also filled by promotion, therefore, in order to maintain the ratio of 50: 50 between promotes and direct recruits, the post now sought to be filled, falls to the quota of direct recruitment.
8. Respondents No. 1 and 2 in their reply have contested the claim of petitioner on the ground that the Department of Personnel, Government of Himachal Pradesh had issued letter No. Per (AP-II) A(3)-2/80 dated 7th November, 2001 stating therein as under " 2. In some of the R & P Rules, a roster has been prescribed against Col. No.11 which indicates post based points for filling up of the posts keeping in view the method of recruitment provided in Col. No.10. In the R & P Rules, the percentage for filling up of the posts, as indicated against Col. No.2 of the Rules, is given against Col. No.10 on the basis of the 'posts' created for a particular category and not on the basis of 'vacancies' meaning thereby that vacancies occur against the posts. As such, a confusion has arisen on the basis of wording of Col. No. 10 of the standard proforma already circulated by the Department of Personnel. Accordingly, the matter has been considered in consultation with the Law Department. In order to remove any ambiguity in this regard, it has been decided ::: Downloaded on - 31/01/2022 22:52:31 :::CIS 7 that the wording of Col. No. 10 of the prescribed proforma for framing of Recruitment and Promotion Rules may be substituted as under:
Before Amendment "Method of recruitment, whether by direct recruitment or by .
promotion, deputation, transfer and the percentage of vacancies to be filled in by various method."
After amendment "Method of recruitment, whether by direct recruitment or by promotion, deputation transfer and the percentage of posts to be filled in by various method."
9. On the basis of above noted correspondence, respondents No. 1 and 2 maintain that the applicable roster is to be concluded on the "posts", meaning thereby the vacancy to be filled thereafter shall be filled from the quota against which post had fallen vacant.
It has further been contended on behalf of respondents that the vacant post of Assistant Professor in the Department of Radiology, IGMC Shimla, is to be filled by promotion as the vacancy has been created on promotion of Dr. Shikha Sud as Associate Professor, who was holding the post as promotee.
10. Respondent No.3 vide his separate reply has echoed the stand of official respondents. During the proceedings of the case, one Dr. Charu Smita Thakur also sought her impleadment as a ::: Downloaded on - 31/01/2022 22:52:31 :::CIS 8 respondent in the case. Her prayer was allowed and she was impleaded as respondent No.4. No reply has been filed on her behalf.
.
11. We have heard learned counsel for the parties and have also gone through the records of the case.
12. Respondents No. 1 and 2 have specifically submitted that to maintain prescribed ratio of 50:50 between promotee incumbents and direct recruits, roster provided in explanation to Clause 6 of Chapter 13 of Handbook on Personal Matters, Volume-
I, will be applicable, which reads as under:
"6. Relative seniority of direct recruits and promotees: -
(a) Provision in general:
The relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules.
Explanation: -
A roster should be maintained based on the reservation for direct recruitment and promotion in the Recruitment Rules. Where the reservation for each method is 50% the roster will run as follows: (1) Promotion, (2) Direct Recruitment, (3) Promotion, (4) Direct Recruitment and so on. Appointment should be made in ::: Downloaded on - 31/01/2022 22:52:31 :::CIS 9 accordance with this roster and seniority determined accordingly.
Illustration: -
When 75% of the vacancies are reserved for .
promotion and 25% for direct recruitment, each direct recruit shall be ranked in seniority below 3 promotees. Where the quotas are 50% each, every direct recruit shall be ranked below a promote. If for any reason, a direct recruit or a promotee ceases to hold the appointment in the grade, the seniority list shall not be re-arranged merely for the purpose of ensuring the proportion referred
13. to above."
Respondents have further contended that column No. 10 of the proforma for R & P Rules was amended and term 'posts' was incorporated in place of term 'vacancies', which as per respondents, necessarily meant that the roster is to conclude on the post and once the roster is concluded then the ensuing vacancies shall be filled from the quota (direct or promotion) in which vacancy had occurred.
14. There is no dispute that cadre strength is always measured by the number of posts comprising the cadre and there must be a post in existence to enable the vacancy to occur. This, however, will not imply that the application of roster will come to ::: Downloaded on - 31/01/2022 22:52:31 :::CIS 10 an end on filling of the entire cadre strength. Application of roster is not the end but only a mean to achieve the object.
15. The object is defined by R & P Rules, wherein specific .
quota of 50% each for direct and promotee candidates has been reserved as source for recruitment for the post of Assistant Professor. In case the interpretation adopted by respondents is accepted, reservation of 50% of the total posts for direct candidates will never be achieved and practically it shall be 60% in favour of promotees and 40% for direct recruits. Such an interpretation, that stares at the face of object sought to be achieved, cannot be countenanced.
16. Thus, such an understanding, in our view, is not legally sustainable for the simple reason that it impedes at the very basis of Recruitment and Promotion Rules providing for reservation in the ratio of 50 : 50 between promotees and direct recruits.
17. While dealing with almost identical proposition in State of Punjab and others vs. Dr. R.N. Bhatnagar and another, (1999) 2 SCC 330, Hon'ble Supreme Court has held as under:
"11. On the other hand, the situation which has fallen for our consideration in the present case in the light of Article 16(1) is squarely covered by a decision of this Court in Paramjit Singh's ::: Downloaded on - 31/01/2022 22:52:31 :::CIS 11 case (supra) as clarified by a latter decision in the very same case reported in [1982] 3 SCC 191. In the aforesaid main case, D.A. Desai, J, speaking for the bench of two learned Judges of this Court, had to consider in paragraph 11 of the Report a recruitment rule which permitted fixed percentage of posts to be filled up in the given cadre from two different sources, .
namely, promotees and direct recruits. Rule 6 of the Punjab Police Service Rules, 1959, which came for consideration in that case provided for a method of recruitment from two different sources i.e. 80% by promotion from the rank of Inspectors and 20% by direct recruitment. Examining the working of the aforesaid quota rule for recruitment in the light of the relevant rotational scheme of vacancies in the cadre to which such recruitment was to be made, the following pertinent observations were made in paragraph 11 of the Report: (SCC p. 485) "11. Where recruitment to a cadre is from two sources and the Service Rules prescribe quota for recruitment for both sources a question would always arise whether the quota rule would apply at the initial stage of recruitment or also at the stage of Confirmation, Ordinarily, if quota is prescribed for recruitment to a cadre, the quota rule will have to be observed at the recruitment stage. The quota would then be co-related to vacancies to be filled in by recruitment but after recruitment is made from two different sources they will have to be integrated into a common cadre and while so doing, the question of their inter se seniority would surface.,...:.."
As there was some doubt about the observations found in the aforesaid paragraph 11 and as to how the recruitment rule in question was to be operated in the light of the quota prescribed therein and the rotational method of achieving the said quota of recruitment from two sources, a later Bench clarified the position in the subsequent judgment in the case of Paramjit Singh (supra). Another bench of two learned Judges, wherein D.A. Desai, J., was common, clarified the observation in paragraph 11 of the earlier Report as under: (SCC pp. 195-96, paras 6 and 7) ::: Downloaded on - 31/01/2022 22:52:31 :::CIS 12 "6. In our opinion there is no ambiguity in the judgment. Ordinarily speaking, where recruitment is from two sources with a view to integrating recruits from both sources after the recruitment seniority is determined from the date of entry into the cadre except where there has been a substantial violation of the quota giving .
undeserved advantage to one or the other source.
Seniority ordinarily speaking is determined with reference to the date of entry into the cadre which in service jurisprudence is styled the date of continues officiation. These notions of service jurisprudence may have to yield place to the specific rules and the fact situation with reference to Rule 10 did compel this Court to depart from the normal concept in service jurisprudence. However, introduction of a roster system is very well-known in-service jurisprudence. What this Court meant while saying that when a quota rule is prescribed for recruitment to a cadre it meant that quota should be co-related to the vacancies which are to be filled in. Who retired and from what source he was recruited may not be very relevant because retirement from service may not follow the quota rule. Promotees who came to the service at an advanced age may retire, early and direct recruits who enter the service at a comparatively young age may continue for a long time. If, therefore, in a given year larger number of promotees retire and every time the vacancy is filled in by referring to the source from which the retiring person was recruited it would substantially disturb the quota rule itself. Therefore, while making recruitment quota rule is required to be strictly adhered to. That was what was meant by this Court when it said : (SCC p. 486, para 14:
SCC (L&S) p. 318) 'The quota rule would apply to vacancies and recruitment has to be made keeping in view the vacancies available to the two sources according to the quota.' ::: Downloaded on - 31/01/2022 22:52:31 :::CIS 13 The quota in the present case is 4:1 that is, four promotees to one direct recruit. Therefore, whenever vacancies occur in the service the appointing authority has to go on recruiting according to quota. In other words, whenever vacancies occur, first recruit four promotees irrespective of the factors or circumstances causing the .
vacancies and as soon as four promotees are recruited bring in a direct recruit. That was what was meant by this Court when it said that a roster has to be introduced and this roster must continue while giving confirmation.
The sentence which seems to have created a difference of opinion reads as under : (SCC p.486, para 14 : SCC (L&S) p.318) "A roster is introduced while giving confirmation ascertaining every time which post has fallen vacant and recruit from that source has to be confirmed in the post available to the source."
7. The sentence cannot be read in isolation. It has to be read with the earlier sentence that the quota rule would apply to the vacancies and recruitment has to be made keeping in view the vacancies available to the two sources according to the quota. The Court then proceeded to say that if the quota rule is strictly adhered to there will be no difficulty in giving confirmation keeping in view the quota rule even at the time of confirmation."
The aforesaid decision which squarely applies to the facts of the present case, therefore, leaves no room for doubt that when under the recruitment Rule 9 in question there is no reservation of any given category of candidates like SCs, STs or BCs to the posts in the cadre of Professors, appointments to the posts in the cadre have to be made in the light of the percentage of vacancies in the posts to be filled in by promotees or direct recruits. The quota of percentage of departmental promotees and direct recruits has to be worked out on the basis of the roster points taking into consideration vacancies that fall due at a given point of time. As stated earlier, as the roster for 3 ::: Downloaded on - 31/01/2022 22:52:31 :::CIS 14 promotees and one direct recruit moves forward, there is no question of filling up the vacancy created by the retirement of a direct recruit by a direct recruit or the vacancy created by a promotee by a promotee. Irrespective of the identity of the person retiring, the post is to be filled by the onward motion of 3 promotees and .
one direct recruit Consequently, learned counsel for the appellant and learned senior counsel for the intervenor were right when they contended that the High Court in its impugned judgment had patently erred in invoking the ratio of decision of this Court in R.K. Sabharwal's case (supra) which was rendered in an entirely different context for resolving an entirely different controversy which did not arise on the facts of the present case. They were also right in contending that the ratio of the decision of this Court in Paramjit Singh's case (supra) read with the decision of this Court in the same case reported in [1982] 3 SCC 191 would get squarely attracted in the facts of the present case. Once that conclusion is reached, the result becomes obvious. Whenever in the cadre of Professors of Ophthalmology vacancies arise for being filled in at any given point of time, those vacancies in the posts have to be filled in by operating the roster in such a way that available vacancies get filled up by allotting 75% of them to departmental promotees and 25% to direct recruits........."
18. The above noted exposition keeps none in the realm of doubt as to how the roster is to be applied in respect of appointment to the posts in a particular cadre which admits of entry from different source.
19. We are also dealing with the fact situation where the source of recruitment to the post of Assistant Professor in Himachal Pradesh Medical Education Service is from two sources i.e. direct ::: Downloaded on - 31/01/2022 22:52:31 :::CIS 15 recruitment and by way of promotion in the ratio of 50 : 50. Thus, we have no hesitation to hold that in such situation each ensuing vacancy in the cadre shall be filled by applicable roster and not .
otherwise.
20. In the Department of Radiology, IGMC, Shimla, undisputedly, out of first 4 posts, 2 were filled by promotee candidates and next 2 were filled by direct recruits. It is stated that the appointments to first 4 posts were not made in accordance with applicable roster as first 2 posts went to promotees and next 2 posts went to direct recruits, whereas the 2nd post should have gone to direct recruit, 3rd post to promotee and then 4th post again to direct recruit. Be that as it may, the appointments to first 4 posts in the manner noted above, will not be of much relevance for deciding the issue before us. Such factor may be relevant for deciding the dispute, if any, as to inter se seniority between the incumbents holding first 4 posts, with which we are not presently concerned.
21. There is no dispute that 5th post again went to promotee candidate. Though, by filling of 5th post, the appointments to entire cadre strength were made but what remained to be achieved was the fulfilment of quota/reservation in the ratio of 50 : 50 between promotees and direct recruits. In this manner, the promotees got ::: Downloaded on - 31/01/2022 22:52:31 :::CIS 16 60% reservation against prescribed 50% quota and direct recruits could get only 40% instead of 50% quota. In case the vacancy now available is again filled by promotee candidate, the discrimination .
already meted to direct recruits shall be perpetuated. On the other hand, the appointment on existing vacant post by direct recruit shall achieve the fulfillment of the respective quota of 50% prescribed for direct recruits and in future adherence to exposition in State of Punjab and others vs. Dr. R.N. Bhatnagar and another (supra) shall serve the ends of applicable R & P Rules and in this manner, the balance shall also be maintained between the promotes and direct recruits in achieving their respective quota of reservation to the extent of 50% each.
22. In light of above discussion, we have no hesitation to hold that the action of respondents No. 1 and 2 to initiate the process for filling up of vacancy to the post of Assistant Professor in the Department of Radiology, IGMC, Shimla by promotion is wrong, illegal, arbitrary and in violation of Articles 14 & 16 of the Constitution of India. Accordingly, the process so issued by respondents 1 and 2 by issuance of letter dated 6.2.2021 (Annexure P-3) and letter dated 15.2.2021 (Annexure P-4) is quashed and set-
aside. It is held that the existing vacancy to the post of Assistant ::: Downloaded on - 31/01/2022 22:52:31 :::CIS 17 Professor in the Department of Radiology, IGMC, Shimla is required to be filled by initiation of process for direct recruitment from the eligible candidates.
.
23. The petition is accordingly disposed of in the aforesaid terms, so also the pending miscellaneous applications, if any, leaving the parties to bear their own costs.
(Tarlok Singh Chauhan)
Judge
13th August, 2021
(GR)
r to (Satyen Vaidya)
Judge
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