Himachal Pradesh High Court
Cwp No.931/2016 vs Of on 10 May, 2016
Bench: Sanjay Karol, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.931 of 2016 alongwith CWP Nos. 932, 947 to 954, 984, 1022, 1095 and 1197 of 2016.
.
Date of Decision : May 10, 2016
1. CWP No.931/2016 Dr. Vinay Bhardwaj ....Petitioner.
versus of State of Himachal Pradesh & others ...Respondents.
2. CWP No.932/2016 Dr. Ankur Gautam rt ....Petitioner.
versus State of Himachal Pradesh & others ...Respondents.
3. CWP No.947/2016 Dr. Sarita ....Petitioner.
versus State of Himachal Pradesh & others ...Respondents.
4. CWP No.948/2016Dr. Shivani Modgil ....Petitioner.
versus State of Himachal Pradesh & others ...Respondents.
5. CWP No.949/2016Dr. Vishal Prashar ....Petitioner.
versus State of Himachal Pradesh & others ...Respondents.
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6. CWP No.950/2016Dr. Natish Dhiman ....Petitioner.
versus .
State of Himachal Pradesh & others ...Respondents.
7. CWP No.951/2016Dr. D. Vipul Parmar ....Petitioner.
versus of State of Himachal Pradesh & others ...Respondents.
8. CWP No.952/2016 Dr. Sapna Devi rt ....Petitioner. versus State of Himachal Pradesh & others ...Respondents. 9. CWP No.953/2016 Dr. Swati Kiran ....Petitioner. versus State of Himachal Pradesh & others ...Respondents. 10. CWP No.954/2016 Dr. Manoj Kumar ....Petitioner. versus State of Himachal Pradesh & others ...Respondents. 11. CWP No.984/2016 Dr. Ravi Singh Dogra ....Petitioner. versus State of Himachal Pradesh & others ...Respondents. ::: Downloaded on - 15/04/2017 20:19:08 :::HCHP ...3... 12. CWP No.1022/2016 Dr. Preetam Singh Thakur ....Petitioner. . versus State of Himachal Pradesh & others ...Respondents. 13. CWP No.1095/2016 Dr. Sucheta Thakur ....Petitioner. versus of State of Himachal Pradesh & others ...Respondents. 14. CWP No.1197/2016 rt Dr. Bhagwan Dass versus ....Petitioner. State of Himachal Pradesh & others ...Respondents. Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes. 1
In presence: Mr. Ankush Dass Sood, Sr.
Advocate with Mr. Ramakant
Sharma, Advocate, for the
petitioner(s) in all the petitions except CWP No. 1022 of 2016 and CWP No. 1197 of 2016 and also for respondents No. 4 and 5 in CWP No. 1022 of 2016.
Ms Ranjana Parmar, Sr. Advocate, with Mr. Karan Singh Parmar, Advocate, for the petitioners in CWP No. 1022 of 2016 and for Whether reporters of the local papers may be allowed to see the judgment?
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respondents No. 4 and 5 in CWP No. 932 of 2016, CWP 954 of 2016 and CWP No.931 of 2016.
Ms Jyotsna Rewal Dua, Sr.
.
Advocate, with Ms Shalini Thakur, Advocate, for the petitioner in CWP No. 1197 of 2016.
Mr. Shrawan Dogra, Advocate General with Mr. Romesh Verma and Mr. Anup Rattan, Addl. A.G. and Mr. J. K. Verma, Dy. A.G. for the respondents-State.
of Sanjay Karol, Judge Shakespeare in Othello has written "Chaos is rt Come Again". This is what one of us (Justice Tarlok Singh Chauhan), while delivering judgment in Dr. Disha Sharma v. State of Himachal Pradesh & others & connected matters, 2015(1) Him L.R (DB) 138, had observed. Year after year, this Court is called upon to settle the mess created at the time of admission of students into the professional courses and as always, functionaries of the State are solely responsible for the same.
2. The Apex Court, while disposing of CWP (C) No.76 of 2015, titled as Ashish Ranjan and others v.
Union of India and others, on 18.1.2016, approved the amendment, carried out by the Medical Council of India, to the Regulations on Graduate Medical Education, 1997.
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The Medical Council of India framed Regulations, called as Regulations on Postgraduate Medical Education Regulations, 2000, amendment whereof was subject .
matter before the Court. Significantly, such amendment prescribed a Schedule for admission to the PG (Broad Speciality) Medical Courses for All India Quota and State Quota. For the category of Broad Speciality, with which of we are concerned, the following Schedule came to be prescribed:
S. No. rt Schedule admission for Broad Speciality All India Quota State Quota
1. Conduct of Month of Month of January Entrance December Examination
2. Declaration of By 15th of By 15th of result of the January February qualifying Exam/Entrance Exam
3. 1st round of Between 12th Between 4th April counselling/ March to 24th to 15th April admission March
4. Last date for By 3rd April By 22nd April joining/reporting the allotted college and the course.
2nd 23rd Between 11th May
5. round of Between
counselling/ April to 30 April to 20th May
th
admission for
Vacancies
6. Last date of By 10th May By 27th May
joining for the 2nd
round of
counselling/
admission
7. Commencement 1st May 1st May
of the academic
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session/term
8. Last date up to By 31st May.
which students
can be admitted/ -
joined against
.
vacancies arising
due to any
reason.
Significantly, when the petition came to be disposed of, the State was duly represented through its Counsel, of which fact is evident from such order passed by the Apex Court (Page-135 of CWP No.931/2016).
3. rtPursuant to the Regulations and the directions issued by the Apex Court, for admission to the Postgraduate Degree Courses, in two of its Colleges, namely Indira Gandhi Government Medical College and Hospital, Shimla and Dr. Rajindra Prasad Government Medical College and Hospital, Kangra at Tanda, on 10.3.2016, the State made available a Prospectus-cum-
Application Form for Counselling and Admission. The Prospectus prescribed the following important dates for completion of the admission/selection process:
IMPORTANT DATES
1. Date for sale of Prospectus 10.03.2016
2. Last date for receipt of application form 05.04.2016
3. Date of Displaying the merit list (group- 08.04.2016 wise and catetory-wise_ on the notice board of IGMC, Shimla and official website drawn by the Principal IGMC, ::: Downloaded on - 15/04/2017 20:19:08 :::HCHP ...7...
Shimla-cum-Member Secretary Counselling Committee on the basis of score of H.P. State Result of AIPGMEE- 2016 of those candidates who have applied for PG (MD/MS) Course on the .
prescribed application form within stipulated date as mentioned in the prospectus.
4. Date of 1st round of Counselling at 12.04.2016 Auditorium Complex, Indira Gandhi (Tuesday) Medical College, Shimla at 11.00 A.M. sharp.
5. Last date for joining/reporting the 22.04.2016 of allotted College and Course.
6. Date of 2nd round of Counselling at 20.05.2016 Auditorium Complex Indira Gandhi Govt. (Friday) Medical College, Shimla at 11.00 A.M. sharp.
rt
7. Last date of joining for 2nd round of 27.05.2016 Counselling/Admission.
8. Commencement of academic session/ 01.05.2016 term w.e.f.
9. The seats remaining vacant after 2nd 30.05.2016 round of Counselling will be displayed (4.00 PM) by the Principal IGMC, Shimla -cum- Member Secretary Counselling Committee on the College notice board and also upload on the College website for wide publicity by
10. Last date up to which students can be 31.05.2016 admitted/joined against vacancies arising due to any reason.
4. Most crucially, in the Prospectus itself, it stood mentioned that the time schedule prescribed stands finalized, in terms of the orders passed by the Hon'ble Supreme Court of India on 18.1.2016.
5. It is not in dispute that all of the private parties before us are in-service candidates, commonly ::: Downloaded on - 15/04/2017 20:19:08 :::HCHP ...8...
known as 'GDOs'. As per the schedule prescribed in the Prospectus, their application forms were required to be submitted before 5.4.2016. Merit list of the eligible .
candidates was to be displayed on the Notice Board as also the official website by 8.4.2016. The First Round of Counselling was to be held on 12.4.2016 at 11 a.m. sharp.
of
6. The GDOs, in terms of the Prospectus, applied for Service Certificate-cum-NOC. When their cases were rt processed, State found 17 of the GDOs ineligible and as such vide communication dated 5.4.2016, expressed its inability to sponsor their names for consideration for appearing in the examination/counselling for admission to the course of MD/MS in the Colleges.
7. Aggrieved thereof, on 7.4.2016, Dr. Vinay Bhardwaj (petitioner in CWP No.931 of 2016) and Dr. Ankur Gautam (petitioner in CWP No.932 of 2016), approached this Court and by way of interim order, this court allowed these two petitioners to participate in the first counselling process at their own risk and responsibility. It stood clarified that such participation would be without creation of any right or equity in their favour.
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8. It is also a matter of record that out of remaining 15 such candidates, whose names stood unsponsored, 11 candidates independently filed petitions .
(between 12.4.2016 and 26.4.2016), in which, this Court by way of interim order allowed them to participate in the Second Round of Counselling, scheduled for 20.5.2016, which also was subject to their own risk and responsibility of and without creation of any right or equity in their favour.
Mr. Ankush Dass, learned Senior Advocate, represents all
9. rt such petitioners.
It is a matter of record that Dr. Vinay Bhardwaj and Dr. Ankur Gautam participated in the First Round of Counselling held on 12.4.2016 and of their own merit, found their names in the merit list prepared by the State.
10. However, while the matters were pending consideration before this Court, the State, after the process of First Round of Counselling was over, on 25.4.2016, discovered the mistake, so committed inadvertently, in admitting one candidate in excess, in the Department of Anaesthesiology in Dr. Rajindra Prasad Government Medical College and Hospital, Tanda. As against the sanctioned strength of four seats, five ::: Downloaded on - 15/04/2017 20:19:08 :::HCHP ...10...
candidates were admitted. Also it was realized that as against the sanctioned strength of five seats in the Department of Surgery, one less seat had been filled up.
.
As such, realizing its mistake, the matter came to be considered at the highest level and a meeting, under the Chairmanship of the Director, Medical Education and Research, was held on 2.5.2016, wherein a decision was of taken to rectify such mistake. In their wisdom, the Committee, in larger public interest, decided to hold rt afresh, the First Round of Counselling for the GDO category candidates. The Merit List so prepared on 12.4.2016 was sought to be modified. A fresh list was sought to be prepared on the basis of fresh Counselling, which was slated to be held on 12.5.2016.
11. Pursuant to the decision taken by the Counselling Committee, an Office Order dated 3.5.2016 came to be issued by the Director of Medical Education and Research, Himachal Pradesh to the following effect:
"The administratively, it has been decided that 1st round of Counselling held on 12.4.2016 for filling-up 50% State quota PG(MD/MS) seats 2016-19 in respect of GDO (In-service) group in Indira Gandhi Medical College, Shimla and Dr. R P Govt. Medical College, Shimla has been cancelled. The re-scheduled date for a fresh 1st round of copunselling will be 12.5.2016 at Auditorium Complex, IGMC, Shimla.::: Downloaded on - 15/04/2017 20:19:08 :::HCHP
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All the candidates (in-service GDO Group) who have been selected provisionally for PG (MD/MS) courses - 2016 during the earlier Counseling which took place on 12.4.2016 for .
Indira Gandhi Medical College, Shimla and Dr. RPGMC, Kangra at Tanda are hereby directed to attend the re-scheduled afresh 1st round of Counselling on the above schedule, date and time. The academic sessions will commence from 13.5.2016. Rest of the time schedule for Counselling/admission will remain unchanged as per prescribed in the PG (MD/MS) Counseling Prospectus - 2016 issued by the department of of Medical Education & Research.
The In service (GDOs) candidates are hereby directed to report their earlier place of rt posting till 11.5.2016."
12. Now, five of those candidates, who stood selected in the First Round of Counselling held on 12.4.2016, aggrieved of such action, laid challenge to this order by way of CWP No.1197 of 2016, titled as Bhagwan Dass & others v. State of H.P. & another. Ms Jyotsna Rewal Dua, learned Senior Advocate, represents such petitioners.
13. It be also observed that other six candidates, who also stood selected in such Counselling, independently filed CWP No.1022 of 2016, titled as Dr. Preetam Singh Thakur & others v. State of Himachal Pradesh & others, praying that ineligible candidates be debarred from participating in the Counselling for the ::: Downloaded on - 15/04/2017 20:19:08 :::HCHP ...12...
Postgraduate Degree (MD/MS) Courses. Ms Ranjana Parmar, learned Senior Advocate, represents such petitioners. In effect, she is opposing the petitioners .
represented by Mr. Ankush Dass Sood, learned Senior Advocate.
14. With these facts we are called upon to answer the following questions:
of
i) As to whether in the light of the decision rendered by the Apex Court in Writ Petition (Civil) No.76 of 2015, titled as rt Ashish Ranjan & others v. Union of India & others, it is open for this Court to interfere with the Schedule fixed by the Apex Court, while approving the amendments carried out in the Regulations made by the Medical Council of India?
ii) As to whether it was open for the State, of its own, to have cancelled the First Round of Counselling held on 12.4.2016 and then rescheduled it to be held on 12.5.2016?
iii) As to whether it was open for the State, of its own, to have corrected its mistake, however bonafide it may be?
iv) As to whether the State was right in construing the provisions of Clause-3 of the Prospectus, while considering the cases of the candidates whose names remained unsponsored for admission to the courses in question?
v) What relief, in the given facts and the circumstances, can be given to the ::: Downloaded on - 15/04/2017 20:19:09 :::HCHP ...13...
privates parties and other meritorious candidates?
15. Answer to Questions No.(i) to (iii) lies in the .
decisions rendered by the Apex Court in Asha v. Pt. B.D. Sharma University of Health Sciences and others, (2012) 7 SCC 389; Priya Gupta v. State of Chhattisgarh & others, (2012) 7 SCC 433; Chandigarh Administration & another of v. Jasmine Kaur & others, (2014) 10 SCC 521; Ashish Ranjan (supra); and the latest decision of this Court in Dr. rt Disha Sharma v. State of Himachal Pradesh & others and connected matters, 2015(1) Him L.R. (DB 138).
16. After taking into consideration its earlier decisions, the Apex Court in Jasmine Kaur (supra), specifically culled out the following principles, which were directed to be strictly and scrupulously adhered to for filling up the seats in various Medical Colleges of the country:
"33. Having noted the various decisions relied upon by the Appellant in SLP (C) No.18099 of 2014 and the contesting Respondent, we are able to discern the following principles:
33.1 The schedule relating to admissions to the professional colleges should be strictly and scrupulously adhered to and shall not be deviated under any circumstance either by the courts or the Board and midstream admission should not be permitted.::: Downloaded on - 15/04/2017 20:19:09 :::HCHP
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33.2 Under exceptional circumstances, if the court finds that there is no fault attributable to the candidate i.e., the candidate has pursued his or her legal right expeditiously without any .
delay and that there is fault only on the part of the authorities or there is an apparent breach of rules and regulations as well as related principles in the process of grant of admission which would violate the right to equality and equal treatment to the competing candidates and the relief of admission can be directed within the time schedule prescribed, it would be completely just and fair to provide exceptional of reliefs to the candidate under such circumstance alone.
33.3 If a candidate is not selected during a particular academic year due to the fault of the Institutions/Authorities and in this process if the rt seats are filled up and the scope for granting admission is lost due to eclipse of time schedule, then under such circumstances, the candidate should not be victimised for no fault of his/her and the Court may consider grant of appropriate compensation to offset the loss caused, if any.
33.4 When a candidate does not exercise or pursue his/her rights or legal remedies against his/her non-selection expeditiously and promptly, then the Courts cannot grant any relief to the candidate in the form of securing an admission.
33.5 If the candidate takes a calculated risk/chance by subjecting himself/herself to the selection process and after knowing his/her non-
selection, he/she cannot subsequently turn around and contend that the process of selection was unfair.
33.6 If it is found that the candidate acquiesces or waives his/her right to claim relief before the Court promptly, then in such cases, the legal maxim vigilantibus non dormientibus aequitas subvenit, which means that equity aids only the ::: Downloaded on - 15/04/2017 20:19:09 :::HCHP ...15...
vigilant and not the ones who sleep over their rights, will be highly appropriate.
33.7 No relief can be granted even though the prospectus is declared illegal or invalid if the .
same is not challenged promptly. Once the candidate is aware that he/she does not fulfil the criteria of the prospectus he/she cannot be heard to state that, he/she chose to challenge the same only after preferring the application and after the same is refused on the ground of eligibility.
33.8 There cannot be telescoping of unfilled of seats of one year with permitted seats of the subsequent year i.e., carry forward of seats cannot be permitted how much ever meritorious a candidate is and deserved admission. In such rtcircumstances, the Courts cannot grant any relief to the candidate but it is up to the candidate to reapply next academic year.
33.9 There cannot be at any point of time a direction given either by the Court or the Board to increase the number of seats which is exclusively in the realm of the Medical Council of India.
33.10 Each of these above mentioned principles should be applied based on the unique and distinguishable facts and circumstances of each case and no two cases can be held to be identical." (Emphasis supplied)
17. This Court through one of us (Justice Tarlok Singh Chauhan) in Dr. Disha Sharma (supra) has rightly taken the view that adherence to the Schedule is the obligation of the authorities as also the students and that the prescribed Schedule is to be maintained stricto sensu by all the stakeholders. Necessity arises, more so for ::: Downloaded on - 15/04/2017 20:19:09 :::HCHP ...16...
nurturing and maintaining discipline, fairness and transparency in the process of selection and admission.
It is also to avoid prejudice to the stakeholders. Citing .
Writ Petition (Civil) No.433 of 2013, titled as Fraz Naseem v. Union of India & others, so decided by the Apex Court, it was observed that strict adherence to the time schedule is a matter of repeated controversy and of consistently, the Courts have opined that schedule is sacrosanct and like the rule of merit all stakeholders, and in rt including the authorities concerned should adhere to it no circumstances permit its violation, for interference with the same gives rise to dual problem.
Firstly, it jeopardizes the interest and future of the students. Secondly, which is more serious, such action would be ex facie in violation of the orders of the Apex Court, and therefore, invite action under the provisions of the Contempt of Courts Act, 1971.
18. This Court was dealing with a case where two seats, allegedly came to be offered, rather surreptitiously only to the candidates who were kept in the waiting list and not to everyone, who were otherwise meritorious than the selected candidates. Thus, the Court heavily ::: Downloaded on - 15/04/2017 20:19:09 :::HCHP ...17...
came upon the State, by making the following observations:
"32. Though no relief can be granted to the .
petitioner(s) for the reasons stated above, yet this Court cannot ignore the lapses on the part of the official respondents, who have acted in the most callous and negligent manner in carrying out the admissions little realizing that the career of more meritorious students has been jeopardized without adhering to the rule of merit that too in violation of its own sacred prospectus. It was on account of the corrective of measures and adherence to rule being thwarted by motivated action on the part of the authorities concerned which had led to manifold increase in arbitrary admissions rtwhereby the repeated defaults had resulted in generating more and more litigation with the passage of time and the desire to curb these incidents of disobedience that the Hon'ble Supreme Court while dealing with cases relating to admissions had issued directions in rem for their strict compliance without demur and default by all concerned in Priya Gupta's case (supra). Therefore, the respondent No.1 is directed to hold an inquiry and fix responsibility against the erring official(s) and submit its report to this Court by 31st December, 2014.
33. Taking into account all these facts and circumstances, it has become imperative for this Court to issue directions that henceforth respondents shall make admissions to PG (MD/MS) Courses strictly in consonance with the procedure as prescribed in the prospectus, more particularly Clause-4, after adhering to the schedule as prescribed in Dr.Fraz Naseem's case (supra) by the Hon'ble Supreme Court. The schedule for admissions shall be religiously followed and vacant seats falling to the respective courses and quotas shall be notified at least a week earlier to the next counselling by displaying and publishing the same on the College notice board, uploading the same on the college website. Apart therefrom, the ::: Downloaded on - 15/04/2017 20:19:09 :::HCHP ...18...
desirability of informing the eligible candidates through e-mail and text message over the mobile phones can also be considered. In short, the respondents would ensure that the admissions are carried out on the basis of merit .
and merit alone in a fair and transparent manner and in no event would merit be compromised." (Emphasis supplied)
19. Now, in the instant case, we find that the Schedule fixed in the Prospectus itself, in fact, stands approved by the Apex Court with a further direction, of which, in our considered view, is mandatory, to all the stakeholders to follow the same in letter and spirit and rt not to deviate therefrom. Relevant portion of such direction in Ashish Ranjan (supra) reads as under:
"Regard being had to the prayer in the writ petition, nothing remain to be adjudicated. The order passed today be sent to the Chief Secretaries of all the States so that they shall see to it that all the stakeholders follow the schedule in letter and spirit and not make any deviation whatsoever. Needless to say the AIIMS and the PGI (for the examination held in July) shall also follow the schedule on letter and spirit."
(Emphasis supplied)
20. One cannot be oblivious of the fact that the Apex Court had approved the amendment to the Schedule prescribed in the Regulations, so framed by the Medical Council of India. The mandate to adhere to the Schedule is, thus, also statutory.
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21. In this view of the matter, we are of the considered view that neither we, nor could the State alter the Schedule fixed in the Prospectus, which is sacrosanct .
having force of law, as has been so laid by a Coordinate Bench of this Court in Gunjan Kapoor v. State of Himachal Pradesh & others, 1999(1) Shim.L.C. 246.
22. The Apex Court in Punjab Engineering of College, Chandigarh through its Principal v. Sanjay Gulati and others, (1983) 3 SCC 517 has held the terms and rt conditions of the Prospectus to be binding even on those who have issued the same.
23. As such, answer to the first three questions, in our considered view, lies in the principles laid down by the Apex Court for more than two decades and the directions issued in Ashish Ranjan (supra). Therefore, neither this Court nor can the State reschedule the Counselling, contrary to the Schedule prescribed in the Prospectus, which, in any case, for the year in question, stands approved by the Apex Court.
24. Even in the teeth of there being a bonafide mistake on the part of the State, this Court, in view of specific approval of the Schedule, for the year in question, by the Apex Court, cannot interfere. The best ::: Downloaded on - 15/04/2017 20:19:09 :::HCHP ...20...
course of action available for the State, in our considered view, would have been to seek appropriate directions from the Apex Court. We clarify not to have examined .
the statutory power of the Regulator, Medical Council of India.
25. We also clarify that we have not gone into the question as to whether the mistake is bonafide or not, but of we have no reason to disbelieve the statement of learned Advocate General to this effect. However, we leave it to rt be independently considered and adjudicated, if so required and desired, in an appropriate proceedings.
26. The Apex Court itself had prescribed the 1st Round of Counselling to be held between 4th April to 15th April. The State chose to hold it on 12.4.2016. It could not have cancelled the same and rescheduled it for a date beyond the period prescribed in Ashish Ranjan (supra). Also, it could not have arbitrarily and unilaterally cancelled the merit list. Neither any notice stood issued, nor consent of the selected candidates obtained prior thereto. Their right, valuable indeed, was sought to be taken away. Hence, the action of the State in doing so is illegal and arbitrary.
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27. While imploring upon us to take an equitable view, Mr. Ankush Dass Sood, learned Senior Advocate, submits that the scope of interference by this Court .
under Article 226 is much wider than Article 32 of the Constitution of India. There cannot be any dispute on the proposition of law, but then, equity also has to be within the four corners of law and we also cannot be oblivious of of the powers of the Apex Court under Articles 141 & 142 and our obligations under Article 144 of the Constitution of India.
28. rt As such, we are of the considered view that Office Order dated 3.5.2016 (Annexure P-12 in CWP No.1197 of 2016) issued, based on the Minutes of the Counselling Committee, held on 2.5.2016, is illegal and as such quashed.
29. This further takes us to the legality of the office communication dated 5.4.2016 (Annexure P-10 in CWP No. 931 of 2016). We are now dealing with Question No.(iv).
30. Extract of the Clauses of the Prospects, relevant for adjudication of the lis, is reproduced as under:
"3. ELIGIBILITY & DISTRIBUTION OF SEATS ::: Downloaded on - 15/04/2017 20:19:09 :::HCHP ...22...
3.1 (A) HPHS (In-service GDO) Group
(i) 66.6% State Quota Seats will be filled-up in-
service Medical Officers (Regular/Contract/RKS). There will be a single merit to fill-up 66.6% State .
Quota Seats.
(ii) The eligibility conditions regarding mandatory period of service (area-wise) in-respect of In-Service group will be as under:-
Category District-wise Medical Mandatory service Blocks period I Chamba-Pangi & 1 year of Bharmour, Tissa Lahaul & Spiti - All Medical Blocks Kinnaur Sangla, Pooh, rt Nichar (Except Bhabanagar) Shimla-Chirgaon, Nerwa & Tikker.
Mandi-Chohar Valley of Padhar Block.
II Kinaur-Bhabanagar of 2 years Nichar Block Kullu-Nirmand & Ani.
Mandi-Karsog &
Janjelhi.
Chamba-Phukhari,
Choori, Kihar, Samote.
Sirmour-Shilai &
Sangarh.
Kangra-Mahakal.
Shimla-Nankhari,
Matiana, Kotkhai &
Kumarsain.
III Other Medical Blocks of 3 years
the State (excluding
the above and below)
and NRHM Office
IV Within the limits of 4 years.
Shimla Municipal
Corporation, within the
limits of Solan
Municipal Committee
and within Baddi-
BGarotiwala-Nalagarh
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notified area.
(iii) In case a Medical Officer has served in more than one above category of area, the mandatory service period will be calculated on pro-rata basis.
.
(i) The mandatory qualifying service conditions in respect of the Medical Officers appointed prior to 19.5.2009 will be governed as per Notification No.Health-A-B(1)-1/2000 dated 10.5.2007 issued by the Government of Himachal Pradesh. They can however also take the benefit of present policy as per option exercised by them. In the event of any candidate seeking benefits under the earlier of notification as well as in the present policy, the mandatory service period will be calculated on pro- rata basis.
rt
(ii) Any In-Service Medical Officer who has completed PG Degree/Diploma in one speciality will not be considered eligible for another PG Degree/Diploma speciality unless he/she has served the State for at least five years after completion of first PG Degree/Diploma. However, such qualifying service will not be mandatory if an In-Service Medical Officer wishes to pursue a PG Degree after completion of PG Diploma course in the same speciality. For pursuing a second PG Degree/Diploma in another speciality, the Medical Officer will not be treated as on duty and will have to avail Study Leave or Leave of the Kind due.
(iii) The candidates from In-Service Group who leave their PG course in midway shall stand debarred to re-appear in the PG Entrance Examination/Counselling for State quota seats next 5 years. Further if the Medical Officer is on duty or on paid leave, full recovery of the amount for the period of PG course attended would be made.
(iv) The mandatory period of continuous regular/ adhoc/contract services in respect to area-wise categorization indicated at para (ii) above shall be counted from the date joining and upto the last date of submission of application form.
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(v) In case of Medical Officer appointed prior to 19.5.2009 whether as regular or on contract basis, the mandatory period of service shall be reckoned as follows:
.
Candidates should have completed two years in tribal/difficult areas. Difficult areas shall be as defined vide Govt. of H.P. Notification No. Health-A-B(1)-1/2000 dated
20.5.2007.
OR of Have completed three years in rural areas which may or may not include tribal/difficult areas as notified by the Govt. rtand applicable to the departmental candidates from time to time. Rural Area shall be the area as defined/notified by the Government. The period of two or three years service rendered could be regular, adhoc or contractual basis and shall be counted from the date of joining and upto the last date of submissions of application form."
(Emphasis supplied)
31. Significantly, the language is clear and unambiguous. Such of those candidates, who had mandatorily completed their period of service in the category of areas specified in the prospectus, could have been considered for selection to the seats in question, as a GDO candidate(s).
32. In its wisdom, for the year in issue, the State culled out four such categories and prescribed the mandatory period of service, making the candidates ::: Downloaded on - 15/04/2017 20:19:09 :::HCHP ...25...
eligible for selection. The whole object and purpose being to provide incentive to the candidates who serve in hard/difficult/backward areas. No doubt, the object is .
noble, for none wants to serve in far off places and otherwise wants to be posted in urban areas. It is for this reason, in its wisdom, the State prescribed four years of mandatory service period for such of those candidates of who have served within the municipal/committee/notified areas and one year of service for those who have served rt in the remotest and hardest areas of the State. Neither is there any, nor can there be any challenge to such wisdom. The object and purpose being noble. After all more than 90% of the population of the State lives in rural areas and effective right to medical facilities is their fundamental right and constitutional goal of the State.
Right to health undisputedly is an integral part of right to life.
33. While vehemently opposing the batch of petitions filed by unsponsored candidates, Ms. Ranjana Parmar, learned Senior Counsel, invites attention of the Court to the Application-cum-Admission Form for counselling, so submitted by such candidates. It is also contended by her that (i) since the applications submitted ::: Downloaded on - 15/04/2017 20:19:09 :::HCHP ...26...
by such candidates were incomplete, as such, they are ineligible; (ii) in any case, it being a service dispute is required to be adjudicated by the State Administrative .
Tribunal; and (iii) in the absence of any specific challenge laid to the merit list, so prepared by the State (Page 84) this Court cannot interfere.
34. From the response filed by the State, one of finds that while determining this mandatory service period, State has taken into account notifications dated rt 18.11.2015 (page 101), 9.12.2011 (page 97), 2.4.2013 (page 90) and 30.9.2013 (Page-96). Ms Parmar states this to be as per practice adopted by the State.
35. Past practice, which is illegal and contrary to the Prospectus, cannot be allowed to be adopted in future, more so, in the light of absence of any material on record to substantiate such fact. As such, this contention also merits rejection.
36. We have already held the prospectus to be binding on the parties, more so, on the State. Prospectus has force of law, already stands held by this Court in Gunjan Kapoor (supra) and Dr. Disha Sharma (supra).
Now what does the prospectus state. It does not refer to any of the notifications referred to or relied upon by the ::: Downloaded on - 15/04/2017 20:19:09 :::HCHP ...27...
State or for that matter Ms Ranjana Parmar, learned Senior Counsel. There is no reference of notifications dated 18.11.2015, 30.9.2013, 2.4.2013 and 9.12.2011.
.
There is only reference of one notification in clause-3 of the Prospectus and that is dated 10.5.2007. Significantly, this notification does not at all deal with the issue of service period. In the said clause, there is reference of a of policy for which candidate can seek benefit but then the reference is in presenti and not past. Now, what is this rt present policy referred to in the said clause, is in fact notification dated 18.11.2015, which is nothing more than what stands reproduced, in a tabular form, in sub-clause
(ii) of Clause A of Clause 3.1. The Prospectus is a statute.
It is clear. There is no ambiguity and as per golden rule of interpretation, it is not open for anyone to import any provision, more so to the contrary, therein. Also, nothing more can be read into it.
37. Perusal of the notification dated 18.11.2015 (Page-101) reveals that the Government consciously took a decision in reducing the mandatory period of service, as was so provided in its earlier notifications. This notification, though partially modifies, but actually revises the mandatory service period. As such we do not ::: Downloaded on - 15/04/2017 20:19:09 :::HCHP ...28...
find favour with the stand taken by the State, that while determining the mandatory period of service, earlier notifications were also required to be considered for .
determining the period of service, of each one of the candidates who had applied for admission to the post in question. In any case, none of the petitioners before us has exercised their option of availing benefit of different of policies of the State, so adopted from time to time.
38. Action on the part of the State in splitting the rt length of period of service on pro-rata basis, keeping in view different notifications issued from time to time, is contrary to the terms of the Prospectus and, therefore, untenable in law, being illegal and not within the framework of constitutional scheme.
39. Sincere efforts made on behalf of the learned Advocate General, in supporting the stand taken by the State, could not persuade us to agree with him.
40. This further takes us to the question as to how the mandatory period of service is required to be calculated. The answer to this, in our considered view, lies in the Prospectus itself. Sub clause (iv) and sub-
clause (vii) of Clause 3.1 (A) (reproduced supra), are evidently clear. The mandatory period of service, ::: Downloaded on - 15/04/2017 20:19:09 :::HCHP ...29...
(continuous/adhoc/contract), for area-wise categorization, is to be counted, from the date of joining up to the date of submission of the application form. However, if a .
person has worked in more than one category of area, so specified in the Prospectus, then the calculation is to be carried out on "pro-rata basis". Now, what is the meaning of this word "pro-rata basis"? Simply put, "pro-
of rata" is proportionately. For us, it is evidently clear, that the length of service of a person, who has served for a rt particular period in each or any one of the category(s), is to be calculated. Now, in the case of the petitioners, who have assailed Annexure P-10, we find that all of them, at one point of time or the other, had worked in hard/difficult/ backward/other areas and if proportionately their length of service is counted, then tenure of mandatory service period makes them fully eligible for being considered as candidates to be sponsored, entitling them to participate in the selection process, for the seats in question.
41. To contend that the matter in issue is a service matter is preposterous. We say this for two reasons: (i) we are dealing with cases of admissions to the Post Graduate Medical Course. It is a matter ::: Downloaded on - 15/04/2017 20:19:09 :::HCHP ...30...
pertaining to eligibility of a candidate for admission into an academic institution and an academic course. It is not a matter of pay, leave or condition of service. It is just an .
interpretation of the Prospectus for admission to an educational course, (ii) Clients of Mr. Karan Singh Parmar, Advocate, have themselves invoked jurisdiction of this Court by filing petition before this Court.
of
42. It is neither the pleaded case of the State, nor that of any one of the parties before us, that petitioners rt in CWPs No.947, 949, 951, 952, 953, 954, 955, 958, 984 & 1095 of 2016, were otherwise ineligible for not having submitted their application forms. In fact, such petitioners had approached the respective Administrative Department for process of their applications in terms of Appendix 4(a) of the Prospectus, which fact is not disputed by the State.
43. As such Office communication dated 5.4.2016 (Annexure P-10 in CWP No.931 of 2016) is quashed and set aside, holding the present petitioners fully eligible to participate in examination and process of selection as a candidate to the courses in question.
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44. Now, what is the course of action available with the State and what relief can be granted to the petitioners before us?
.
45. In our considered view, the State has to now proceed with the Second Round of Counselling, so fixed for 20.5.2016. Insofar as adjustment of the seats is concerned, it shall be open for them to do so, at that of point in time.
46. Insofar as petitioners Dr. Ankur Gautam and rt Dr. Vinay Bhardwaj are concerned, we find from the response filed by the State that on their own merit, they have otherwise qualified in the First Round of Counselling held on 12.4.2016. They are at State Rank No. 2 and 7 respectively. They shall be deemed to have been selected on their own merit in the First Round of Counselling.
47. Selection List prepared in First Round of Counselling held on 12.4.2016 cannot be disturbed except for one excess seat which already stands filled and that too by a direct candidate. We find, petitioners in CWP No.1197 of 2016, titled as Bhagwan Dass & others v.
State of H.P. & another to be there in such merit list.
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48. The remaining petitioners before this Court (11 candidates) would be entitled to participate in the Second Round of Counselling, to be considered for the .
available seats on their own merit. It stands clarified that regardless of the parties who are before us, all selections have to be purely on the basis of merit.
With the aforesaid observations, all the writ of petitions stands disposed of, so also pending application(s), if any.
rt ( Sanjay Karol ),
Judge.
( Tarlok Singh Chauhan ),
May 10, 2016(sd) Judge.
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