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2002 DIGILAW 127 (HP)

JAGPAL SINGH v. STATE OF H. P.

2002-05-03

LOKESHWAR SINGH PANTA, W.A.SHISHAK

body2002
JUDGMENT Lokeshwar Singh Panta, J- This petition has been filed by the petitioner under Article 226 of the Constitution of India for the following reliefs: (a) The respondents may be directed to produce the record before the Honble Court; (b) The impugned criteria prescribed/laid down by the respondents in the Prospectus for Entrance Test for Post-Graduate Degree and Diploma Courses in Session 2001-2002/2004 whereby the doctors working on contract/ad hoc basis have been rendered and are being treated as ineligible for selection against in service quota seats may| kindly be declared unconstitutional and struck down; (c) The impugned action and decision of the respondents in not forwarding and rather turning down the petitioners application for appearing in the said Entrance Test under the category of in-service doctors may kindly be declared illegal, ultra vires and unconstitutional and may be quashed and set aside; (d) The respondents may kindly be directed to treat the petitioner as eligible for appearing in the forthcoming Entrance Test for post Graduate Degree/Diploma Course in respect of in-service quota seats and in case the petitioner is found suitable and selected in the said Entrance Test to accord all consequential benefits; (e) Any other appropriate order or relief or direction which may be considered just and proper in the facts and circumstances of the case may also kindly be issued in favour of the petitioner." 2. The case of the petitioner is that he passed his MBBS final year examination in the year 1997 securing 60% marks. He was initially appointed on contract basis in the pay scale of Rs.2200-4000 for a period of three years vide order dated 26.6.1998, a copy whereof is placed on record and marked as Annexure P-1. He was initially posted at CHC, Sarahan, District Sirmaur against a vacant post after having been interviewed and selected. The petitioner was lateron transferred to Public Health Centre, Patta (Solan) by order dated 27.12.1999 where he was working at the time of filing of the writ petition i.e. on 25.12.2001. He completed his three years of service in June, 2001. However, his contract was extended by order dated 26.7.2001 marked Annexure P-2 on the existing terms and conditions upto 30.6.2002. According to the petitioner he had also completed the rural area service as certified by Additional District Magistrate, Solan dated 19.10.2000 marked as Annexure P-3. He completed his three years of service in June, 2001. However, his contract was extended by order dated 26.7.2001 marked Annexure P-2 on the existing terms and conditions upto 30.6.2002. According to the petitioner he had also completed the rural area service as certified by Additional District Magistrate, Solan dated 19.10.2000 marked as Annexure P-3. The petitioner states that he has been discharging the same functions duties and responsibilities as are being discharged by persons who are regularly appointed on the said post in terms and conditions contained in contract marked as Annexure P-4. It is further case of the petitioner that contract document marked as Annexure P-4. Would show that the services rendered, experience gathered and salary including increment paid to doctors appointed on contract basis are at par with those who are appointed on regular or ad hoc basis. So much so, that even persons who are appointed on contract basis are given regular increments, entitled to draw all allowances, allowed to contribute towards General Provident Fund, and they can be transferred from one station to another station and are governed by the same set of rules i.e. CCS (CCA) Rules, 1965, Conduct Rues, 1964 and Himachal Pradesh Civil Medical Service (General Wing) Rules, 1995. The Government of Himachal Pradesh for various reasons has not been able to make regular appointment on the post of Medical Officer every year. The residuary posts are being manned by persons appointed on ad hoc or contract basis. The Government of Himachal Pradesh prescribed prospectus for Entrance Test for Post Graduate Degree (MD/MS) and Diploma Courses in Indira Gandhi Govt. Medical College, Shimla which is affiliated to Himachal Pradesh University. According to the petitioner by virtue of Clauses 3.2, 3.5 and 3.11 of the guidelines and criteria so prescribed in the Prospectus issued by the respondents, a person in order to be eligible for in-service (HPHS-1) candidate must have been appointed on regular basis and must have been completed two years service in tribal/district areas and three years service in rural areas. Simultaneously, Clauses 3.11 provides that working on ad hoc basis will not be considered as eligible for direct seats whereas in the Prospectus issued for the earlier sessions even service rendered on contract basis was to be counted for computing the total length of qualifying service. Simultaneously, Clauses 3.11 provides that working on ad hoc basis will not be considered as eligible for direct seats whereas in the Prospectus issued for the earlier sessions even service rendered on contract basis was to be counted for computing the total length of qualifying service. The petitioner stated that it is understandable that there may be some rationale and wisdom underlying the decision of the State Government in reserving direct seats for fresh candidates but there cannot be any justification whatsoever for completely excluding persons working on contract/ad hoc basis from even being considered against the quota of in-service seats for Post Graduate/Diploma Courses. 3. According to the petitioner he submitted his application for appearing in the Entrance Test for Post Graduate Degree/Diploma Courses through his superior officer, Block Medical Officer. PHC, Chandi, District Solan. His application along with its enclosures was forwarded by the Block Medical Officer to the Chief Medical Officer for onward transmission to the higher authority. He also submitted a representation marked as Annexure P-8 to the Commissioner-cum- Secretary (Health) to the Government of Himachal Pradesh (respondent No. 1) for being permitted to appear in the forthcoming Entrance Test, inter alia, pointing out that even though his appointment was labelled as "contract service" yet, his duties and emoluments were at par with those who stood appointed on regular basis. In the said representation, the petitioner pointed out that the eligibility criteria so prescribed whereby in-service quota seats are being put out of reach of persons appointed on ad hoc/contract basis is un-reasonable and discriminatory which is also evidenced by the fact that in other States including Punjab and Rajasthan there is no such restrictions. The petitioner is not being issued that admit card for appearance in the examination on the ground that he was appointed on contract basis and, therefore, he .is ineligible to appear in the Entrance Test. According to the petitioner, the impugned criteria so prescribed by the respondents in terms of which doctors working on ad hoc/contract basis have been completely excluded from participating in the selection in respect of both in service and direct quota seats are patently, arbitrary, un-reasonable, irrational, unjust, improper and unfair hence violative of Article 14 of the Constitution of India. In these premises, the petitioner, therefore, has approached this Court by filing the present writ petition for appropriate reliefs. 4. In these premises, the petitioner, therefore, has approached this Court by filing the present writ petition for appropriate reliefs. 4. Notice was issued on 27.12.2001 pursuant to which the respondents appeared. On Civil Misc. Petition No. 2014 of 2001 the Court passed the following orders: "Notice accepted. Heard. In the facts and circumstances on record, interim order is passed to the effect that provisional admit card will be issued to the petitioner to enable him to appear in Entrance Test for Post Graduate Degree/Diploma Courses for the Sessions 2001/2002/2204 to be held on 29th December, 2001, but the result of the petitioner will not be declared till further orders. Liberty is, however, reserved to the learned Counsel for the petitioner for making any further prayer before the Vacation Judge." 5. Civil Misc. Petition No. 144 of 2002 filed by the petitioner praying for declaration of his result of Entrance Test and also allowing him to participate in counseling if he had successfully passed the Entrance Test came up before the learned Vacation Judge on 8.2.2002. On that day the learned Asstt. Advocate General place on record a letter written by the Directorate Medical Education and Research, Himachal Pradesh to the Commissioner-cum Secretary (Health) to the Govt. of Himachal Pradesh stating therein that the counseling had already been postponed till the decision of the present writ petition and in view of the averments of the said latter, the respondent-H.P. University was directed to produce the result card of the petitioner in a sealed cover before the Court on 25.2.2002. 6. Two sets of affidavits-in-reply were filed by the respondents. In the counter of the State of Himachal Pradesh and Director of Health Services filed on the affidavit of Additional Secretary (Health) to the Govt. of Himachal Pradesh, it was stated that the selection of MBBS doctors for Post Graduate Degree/Diploma courses in Indira Gandhi Medical College, Shimla is made through Competitive Examination conducted by the H.P. University strictly according to the provisions of the prospectus issued by the State Government. The prospectus is prepared every year on the recommendations Of duly constituted Prospectus Review Committee consisting of District Medical Education, Addl./Joint Controller of Examinations, H.P. University, Principal I.G. Medical College, Shimla and the Addl/Dy. Director (Admn.) and subsequently the prospectus after preparation by the Review Committee is approved by the State Government. The prospectus is prepared every year on the recommendations Of duly constituted Prospectus Review Committee consisting of District Medical Education, Addl./Joint Controller of Examinations, H.P. University, Principal I.G. Medical College, Shimla and the Addl/Dy. Director (Admn.) and subsequently the prospectus after preparation by the Review Committee is approved by the State Government. At the time of preparation of the prospectus, the Review Committee has to consider all the instructions/guidelines issued from time to time by the Medical Council of India; Govt. of India; State -Government and representations/suggestions from various quarters besides the judicial decisions/judgments of the Honble Courts for their suitable inclusion in the prospectus. Before preparation of the prospectus for the Sessions 2001/2003/2004 the entire procedure was completed in principle. It was also stated that since the petitioner has not been regularly appointed in the Cadre of Himachal Pradesh Health Service (HPHS-I) and mere three years contract service does not make him eligible for competing for Post Graduate Degree/Diploma Courses either as per the eligibility criteria contained in the earlier prospectus or the criteria contained in the prospectus for Sessions 2001/2003/2004 and therefore, he is not at ail entitled for any relief claimed in the writ petition. The respondents also stated that the petitioner cannot claim for regular appointments as a matter of right as regular appointments are made by the Govt. from time to time after following the proper procedure and for becoming eligible to complete for Post Graduate Degree/Diploma Courses one needs to be in regular service having three years rural service. It was further submitted that in the prospectus for the earlier session as well as for the present session the candidate must be regular HPHS Officer after competing three years service. The petitioner does not even fulfil the criteria contained in the prospectus to appear as direct candidate because it appears that he has not obtained MBBS degree from the Himachal Pradesh University as per the guidelines of the prospectus i.e. through CBSE or any other All India Entrance Examination. 7. Supplementary affidavit on behalf of respondents 1 and 2 was filed by Shri Tilak Raj, Under Secretary (Health), to the Govt. of Himachal Pradesh in which it has been stated that the petitioner was appointed on the contract basis as Medical Officer vide notification dated 26.6.1998 for a period of three years. 7. Supplementary affidavit on behalf of respondents 1 and 2 was filed by Shri Tilak Raj, Under Secretary (Health), to the Govt. of Himachal Pradesh in which it has been stated that the petitioner was appointed on the contract basis as Medical Officer vide notification dated 26.6.1998 for a period of three years. Thereafter, vide office order dated 23.7.2001, his contract appointment was renewed upto 30.6.2002 on the same terms and conditions as prescribed in Notification dated 26.6.1998. 8. The Himachal Pradesh University in its counter stated that Entrance Test for admission to Post Graduate Degree/Diploma Courses is being held by it every year in accordance with rules and eligibility criteria reflected in the prospectus which was approved by the State Government. The petitioner could not fulfil the basic eligibility criteria as laid down in Clauses 3.2(i) read with Clause 3.5 of the prospectus prescribed for HPHS-I in-service candidates as he has been appointed on purely contract basis by respondents 1 and 2. The petitioner is also not eligible to complete as a direct candidate as per the provision of Clause 3.2(i) of the prospectus. However, it was stated- that the petitioner was issued provisional Roll Number pursuant to the interim direction issued by this Court but his result was not declared. 9. Before we may proceed to discuss the submissions made by the learned Counsel for the parties. Clause (3) of the Prospectus for Sessions 2001/2003/2004 is relevant for our purposes which reads as under: "3. Eligibility and Distribution of Seats, Restrictions and General. 3.1. Group-A (i) 25% seats of Degree and Diploma Courses shall be filled through All India Entrance Examination conducted by all India Institutes of Medical Sciences or any other body nominated by the Government of India from time to time. "The seats will go in accordance with the roster maintained for the purpose. (ii).................................... 3.2 Group-B (i) Out of remaining 75% seats, 66.6% will be filled by in-service regularly appointed HPHS-I Himachal Pradesh Health Cadre (Ad hoc service will also be counted as qualifying service for the purpose of admission) and 33.3% seats, named direct seats will be available by open competition from amongst the graduates of Indira Gandhi Govt. Medical College and Children of bona fide Himachali/Himachal Govt. employees and employees of autonomous bodies wholly or partially financed by Himachal Pradesh Govt. Medical College and Children of bona fide Himachali/Himachal Govt. employees and employees of autonomous bodies wholly or partially financed by Himachal Pradesh Govt. getting admission to MBBS course through CBSE or any other All India Entrance Examination in MCI/G.O.I. recognized medical colleges in India, (ii) In case any seats in pre and para-clinical Departments remain unfilled after 3rd counseling in view of 3.2(i) above, then in accordance with the recommendations of the Central Council for Health and Family Welfare as communicated vide Govt. of India letter No. Z.16018/1/99/ME (PG), dated 14th May, 1999. Such seats shall be filled up from in-service candidates (on merits basis) of Govt. of Himachal Pradesh who otherwise fulfil minimum eligibility criteria, (iii) Candidates seeking admission must.- (a) Possess MBBS degree of Himachal Pradesh University or any other University or-any other University recognized by Medical Council of India. However, those who are likely to complete their internship at the time of counseling can also apply (one year compulsory rotatory internship is not necessary for the candidate who qualified MBBS before it was started or it was of 6 months duration only). (b) Have obtained full registration either from Medical Council of India or any of the State, Medical Councils Certificate should be available at the time of admission........................ 3.5. To qualify for admission to degree or diploma courses such regular HPHS-I candidates will be eligible, who :- (i) are regularly appointed in the HPHS-I. However ad hoc service will be counted as qualifying service for the purpose of admission. (ii) Candidates should have completed 2 years in tribal/difficult areas. Difficult areas are defined by the Department of Personnel, Govt. of Himachal Pradesh from time to time. (iii) Have completed 3 years in rural areas which may or may not include tribal/difficult areas. 3.6. The period of continuous regular service including ad hoc service be calculated right from the date of joining as HPHS-I till the last date fixed for receipt of. Application in the Himachal Pradesh University. 3.7. HPHS-I who has selected and has successfully completed a diploma or Degree course will not be eligible for applying against until he has served the State Government for five years after he has completed Diploma/Degree Course. Provided that such qualifying, service will not be necessary if any officer wishes to follow a Diploma with a Degree Course in the same specialty. Provided that such qualifying, service will not be necessary if any officer wishes to follow a Diploma with a Degree Course in the same specialty. 3.11 (i) No in service candidate(s) will be eligible to appear in the competitive examination if his/her application has not been routed through the Director of Health Services H.P. (ii) Candidates applying for direct seats will have to submit an affidavit duly attested from the competent authority on non-judicial stamp paper of 3/- that he/she is not in regular/ad hoc service of Government of Himachal Pradesh (the specimen of affidavit is attached at Appendix A-3) in the prospectus. Further doctors working on ad hoc basis will not be considered as a direct candidate." 10. The Governor of Himachal Pradesh in exercise of powers by proviso to Article 309 of the Constitution of India and in consultation with the H.P. Public Service Commission has framed the rules called the H.P. Civil Medical Services (General Wing) Rules, 1995. 11. Part-II of these Rules deals with the recruitment to the H.P. Civil Medical Services (General Wing). Appointment to the service shall be made by the Government under Rule 5. The condition for appointment such as nationality, age and production of necessary certificate etc. are contained in Rule 6. The educational and professional qualification of the candidates for appointment to the various posts in the service ins specified in Annexure 1 to these rules. Rule 8 deals with the absorption in service. Under Rule 11 appointment by promotion to the service under Rule 7 shall be made by the appointing authority on the recommendations of the Departmental Promotion Committee, constituted by the Government from time to time or on the recommendations of the Himachal Pradesh Public Service Commission as the case may be. 12. Part-Ill deals with the conditions of service. Under rule 13 a person appointed to service shall remain on probation for a period of two years subject to such further extension for a period of not exceeding one year as may be ordered by the competent authority in such circumstances and reasons to be recorded in writing. 12. Part-Ill deals with the conditions of service. Under rule 13 a person appointed to service shall remain on probation for a period of two years subject to such further extension for a period of not exceeding one year as may be ordered by the competent authority in such circumstances and reasons to be recorded in writing. If in the opinion of the appointing authority, the work or conduct of a person during the period of probation- is not found satisfactory, if such person is recruited by direct recruitment, his services be dispensed with and in case if such person is promoted he may be reverted to the post from which he was promoted. The inter se seniority of HPHS-I and specialists Grade (General) and HPHS-II officer shall be maintained in accordance with rule 14. Rule 19 prescribes that a member of the service shall be liable to serve through to the State of Himachal Pradesh, whenever and whenever he is posted by the appointing authority. Under sub rule (5) of Rule 19 no application of a Graduate (MBBS) shall be forward to any Institution for Post graduation/Diploma course, unless he has served for three complete years in hard areas and for two years in PHC/CDs in other than hard area. Under sub-rule (6) the resignation of the member of HPHS-I shall not be accepted unless he has rendered 10 years of complete service including ad hoc service. 13. We have heard Mr. B.C. Negi, learned Counsel for the petitioner, Mr. R.M. Bisht, learned Asstt. Advocate General for respondents 1 and 2 and Mr. S.S. Mittal, learned senior Counsel for respondent-University. Mr. Negi, learned Counsel submitted that in the prospectus for the year 1999-2001/2002 under Clauses 3.2, 66.6% seats were to be filed in by in-service regularly appointed HPHS-I in Himachal Pradesh Health Cadre, and ad hoc and/or contract service was also to be contended as qualifying service for the purpose of admission but as per the guidelines and instructions laid down in the prospectus for the Session 2001-2003/2004 the exclusion of a person appointed on contract basis under Clause 3.5 is patently arbitrary, unreasonable, irrational and hence violative of Article 14 of the Constitution of India. According to him the petitioner was appointed for a period of three years on contract basis and as per the terms and conditions of the contract marked as Annexure P-4 the petitioner was given regular pay scale earned regular increments and was entitled to draw all allowances which are admissible to the regularly appointed doctors and further his service will be governed by the rules and orders in forcer from time to time as applicable to other Government servants except Temporary Services Rules, 1965. In the face of the terms and conditions regarding appointment of the petitioner on contract basis, the period of three years which was later on extended vide order dated 30.6.2002 for one more year on the existing terms and conditions as prescribed in Notification dated 26.6.1998 should be treated as continuous regular service till last date fixed for receipt of the application and the action of the respondents that the contract period will not be counted for considering admission to the Degree/Diploma courses is not sustainable. He next contended that the respondents have not spelled out any reason to review the. Earlier prospectus excluding those doctors who have worked on contract basis in the service of the State Government from appearance in the Entrance Test. In support of his submission, Mr. Negi, learned Counsel has -placed reliance on Dr. Ashok Kumar Mishra and others v. State of Orissa and others, AIR 1984 Orissa 121, Deepak Sibal v. Punjab University and another, 1989(2) Supreme Court Cases 145, Kumari Shrilekha Vidyarthi etc. etc. v. State of U.P. and others, AIR 1991 Supreme Court 537 and Pre-PG Medical Sangharsh Committee and another v. Dr. Bajrang Soni and others, 2001(8) Supreme Court Cases 694. 14. Per conrtra, learned Asstt. Advocate General, contended that the petitioner and other similar placed doctors were appointed on contract basis for fixed tenure and since their appointment was not according to the HP. Civil Medical Services (General) Wing Rules, hence, the petitioner cannot claim that he has been appointed against regular HPHS-I post and thereby has become eligible to appear in the Entrance Test as in service candidate. According to the learned Assistant Advocate General, State Government has power to review the eligibility criteria and distribution of seats as per the existing vacancies of Post Doctors in the State. 15. We have considered the respective contentions of the learned Counsel. According to the learned Assistant Advocate General, State Government has power to review the eligibility criteria and distribution of seats as per the existing vacancies of Post Doctors in the State. 15. We have considered the respective contentions of the learned Counsel. On examination of the relevant provisions of the H.P. Civil Medical Service (General) Wing Rules, 1995 referred to above, the service, rendered by the petitioner on contract basis cannot be counted as qualifying service for making him eligible as in service regularly appointed in HPHS-I, Cadre as he has not undergone the process of selection through H.P. Public Service Commission as he was not appointed under Rules 1995 by the State Government. The prospectus for Entrance Test for Post-Graduate Degree/Diploma Courses for Sessions 2001-2003/2004 was prepared by the duly constituted Review Committee which was later on approved by the State Government. The object to review the eligibility criteria and other conditions for admission to Post Graduate Degree/Diploma Courses as laid down by the Prospectus Review Committee, was to consider all the instructions/guidelines issued from time to time by the Government of India or State Government or Medical Council of India as well as representations/suggestions received by the State Government from various quarters and in addition thereto the Judicial decisions rendered by the Courts from time to time. Indira Gandhi Medical College, Shimla is affiliated to the Himachal Pradesh University and admissions are made to the Courses as recognized/permitted by the Medical Council of India/H.P. University strictly in accordance with the guidelines/decisions laid down by the Medical Council of India and by the State Government. It is well settled law that the rules contained in the prospectus have the force of law. The principle which is accepted by the 5 is that the Government which beas the burden of running a particular educational institution cannot be denied the right to decide from what sources the admissions to that institution will be made. It is well settled law that the rules contained in the prospectus have the force of law. The principle which is accepted by the 5 is that the Government which beas the burden of running a particular educational institution cannot be denied the right to decide from what sources the admissions to that institution will be made. Therefore, if the sources are properly classified by the Government on some reasonable basis it is not for the Courts to interfere with the manner and method of classification, as held in Kumari Chitra Ghoh v. Union of India, reported in AIR 1970 SC 35, and re-affirmed in D.N. Chachala v. The State of Mysore, reported in AIR 1971 SC 1962.However, for a reasonable classification two conditions are necessary namely, (1) it should be on intelligible differential which distinguishes persons or things grouped together from others left out of that group and (2) the differentia must have some rational nexus with the object sought to be achieved. If these two tests for classification are complied with there would be no infringement of Article 14 of the Constitution. The ratio of 66.6% out of 75% seats in Group-B under Clauses 3.2 of the Prospectus to be filled in by in service regularly appointed HPHS-I Himachal Pradesh Health Cadre appears to be reasonable, fair, and justified. The object to facilitate and ensure the up gradation of exiting knowledge and skill of in-service regularly appointed HPHS-I Doctors whose services as experienced Post Graduate Doctors shall be utilized in the rural areas of the State for providing proper medical services to the public at large. The petitioner was appointed on contract basis for three years, and his experience of tenure appointment cannot be equated and compared with the experienced regular in-service doctors appointed against HPHS-I Cadre. 16. Now we may deal with the decisions on which reliance was placed by the learned Counsel for the petitioner to contend that classification of seats under Clause 3.2 of the prospectus is violative of Article 14 of the Constitution. In Deepak Sibal v. Punjab University and another (supra), private employees of the institutions were excluded from getting admission to evening classes of LLB for three years degree courses, vis-à-vis the employees of Government/semi-Government institutions etc. on the ground that there may not be an assured tenure of employment likely to continue for three years. In Deepak Sibal v. Punjab University and another (supra), private employees of the institutions were excluded from getting admission to evening classes of LLB for three years degree courses, vis-à-vis the employees of Government/semi-Government institutions etc. on the ground that there may not be an assured tenure of employment likely to continue for three years. In the facts and circumstances of the case their Lordships have held that such classification not only does not stand scrutiny but is also unfair and unjust and cannot form the basis of such exclusion. The expression regular employee normally means bona fide employees. Such bona fide employees may be permanent or temporary, all that the University can insist is that one should be a bona fide employee and if there be materials to show that a candidate for admission in the evening classes is a bona fide employee the University cannot further insist on assured, tenure of service of such an employee for a period of three years. It is not understandable why government/semi-Government employees in general should be imparted legal education and what sort of public interest would be served by such legal education. It cannot be laid down that only government employees requires legal education and not private employees. Thus, the impugned rule, having made a classification which cannot be justified on any reasonable basis, was held to be discriminatory and violative of. Article 14. In Kumari Shrilekha Vidyarthi etc. etc. v. State of U.P. and others (supra), the impugned circular G.O. No. 284-Seven Law Ministry D/ 6.2.90 issued by the State of U.P. terminating appointments of all District Government Counsel in all districts of State of U.P., was held to be arbitrary and unreasonable and therefore struck down under Article 14, as no common reason applicable to all of the them justifying their termination in one stroke on a reasonable ground was shown to the Honble Court. In Pre-PG Medical Sangharsh Committee and another v. Dr. Bajrang Soni and others (supra), the point for their Lordships consideration was whether the allocation of seats for admission in the form of a quota amongst in service candidates, on the one hand, and non-service or private candidates on the other and the method or manner of working out in practice the allocation of seats among the members of the respective category were proper and reasonable or not. Could the State Government have legitimately made a provision allocating 50% of seats exclusively in favour of the in-service candidates and keep open the avenue for competition for them in respect of the remaining 50% along with others, denying a fair contest in relation to a substantial or sizable number of other candidates, who are not in service and who fall under the category of non-service candidates. Their Lordships dealing with the proposition have held that the doctors who are in-service candidates in various medical institutions run and maintained by the Government or government departments, have wide area and horizon of exposure on the practical side and they may not have the required extra time to keep themselves afresh on the theoretical side like an open candidate who may have sufficient time at his disposal to plod through books. Further it is said that in-service candidates in contrast to the fresh or opened candidates have to spend much of their time on attending and treating the patients in the hospitals they serve gaining excellence on the practical side and that they would constitute a distinct class by themselves to be given a special treatment and no grievance can be made out on the ground that the minimum eligibility marks for their selection in respect of seats earmarked for them should also be the same as 4hat of the fresh or open candidates. In this view of the matter, their Lordships held that they could see no discrimination or arbitrariness involved in the special provision made to meet a just and appropriate need in public interest in fixation of minimum qualifying marks from 50% to 33% to in-service candidates and the action of the State Government in the reduction of the minimum qualifying marks was found valid and not arbitrary or discriminatory of Article 14 of the Constitution of India. 17. In the facts and circumstances of the present case, we find that the ratio of the decisions relied upon by Mr. Negi is of no assistance or help to the case of the petitioner. Under Clause 3.5 it is made clear that to qualify for admission to Degree or Diploma courses such; regular HPHS-I candidates will be eligible who are regularly appointed in the HPHS-I and ad hoc service will be counted as qualifying service for the purpose of admission. Negi is of no assistance or help to the case of the petitioner. Under Clause 3.5 it is made clear that to qualify for admission to Degree or Diploma courses such; regular HPHS-I candidates will be eligible who are regularly appointed in the HPHS-I and ad hoc service will be counted as qualifying service for the purpose of admission. Under Clause 3.6 the period of continuous regular service including ad hoc service will be calculated right from the date of joining as HPHS-I till the last date fixed for receipt of application in the Himachal Pradesh University. Under Clause 3.11(i) no in-service candidate(s) will be eligible to appear in the competitive examination if his/her application has not been routed through the Director of Health Services H.P. The candidates applying for direct seats will have to submit an affidavit duly attested from the competent authority on non judicial stamp paper of 3/that he/she is not in regular/ad hoc service of Government of Himachal Pradesh and the doctors working on ad hoc basis will not be considered as a direct candidate by virtue of Clauses 3.11(ii). The petitioner was admittedly not regularly appointed in the HPHS-I nor he was on ad hoc service of Himachal Pradesh Health Centre. The Supreme Court while interpreting the Central Bureau of Investigation (Deputy Inspector. General of Police/Deputy Director Recruitment Rules, 1975) in K. Madhavan and another v. Union of India and others, 1987(4) Supreme Court Cases 566 held as under: (SCC P-575 para 10). "10. The 1975 Rules which are relevant for the purpose do not explain what is meant by the expression on a regular basis. The expression has created some ambiguity in the eligibility clause giving rise to this controversy. There can be no doubt that when a person is appointed to a post against a permanent vacancy on probation, his appointment is on a regular basis, but when a person is appointed to a post on a purely temporary or on an ad hoc basis, the appointment is not on a regular basis. The expression on a regular basis in the 1975 Rules cannot, in our opinion, be interpreted to mean as on absorption in the CBI as SP. The expression on a regular basis in the 1975 Rules cannot, in our opinion, be interpreted to mean as on absorption in the CBI as SP. The general principle is that in the absence of any specific provision to the contrary, the length of service from the date of appointment to a post should be taken into consideration for the purpose of either seniority in that post or eligibility for the higher post. As no explanation has been given in the 1975 Rules of the said expression, we do not think it desirable to deviate from the established principle of computing the length of service for the. Purpose of seniority or eligibility for the higher post from, the date of appointment. In our view, therefore, the expression on a regular basis would mean the appointment to the post on a regular basis in contradistinction to appointment on ad hoc or stopgap or purely temporary basis. Respondent No. 5, in our opinion, satisfied the eligibility test of the 1975 Rules for consideration for the post of DIG. But, it is not disputed by the parties that the petitioners and respondent 5 have, by the lapse of time during the pendency of this litigation, become eligible for appointment to the posts of Dig. Indeed, they are holding the posts of DIG, may be on ad hoc basis, under the interim orders of this Court and there is no chance of their being reverted to the next lower post of SP. The question, therefore, boils down to the seniority of the petitioners, vis-à-vis respondent 5 in the post of DIG. That again will depend upon the decision on the question as to the seniority of the petitioners and respondent 5 in the post of SP." 18. In view of the dicta of law laid down in the aforesaid decision, the expression in service regularly appointed HPHS-I Himachal Pradesh Health Cadre incorporated in Clause 3.2 Group-B of the prospectus would mean the appointment to the post on a regular basis in contradistinction to appointment on ad hoc or stopgap or purely temporary basis. The petitioner does not satisfy the eligibility test of Clause 3.2 Group B -and his application to appear for admission to post graduate Degree/Diploma Course in our view has been rightly rejected by the respondents. 19. The petitioner does not satisfy the eligibility test of Clause 3.2 Group B -and his application to appear for admission to post graduate Degree/Diploma Course in our view has been rightly rejected by the respondents. 19. In Union and others v. No. 664950 Im Havildar/Clerk SC Bagari, 1999(3) Supreme Court Cases 79 while interpreting Army Act, 1950, Section 3(XII), (XV) and (XVIII) and Army Order 11 of 1987, Rr.1 and 2 on question of benefit of study leave extended to officers in army but not to non-commissioned personnel like Havildar/Clerk it is held that the object of granting study leave is to enhance the knowledge of the COs who have an important role to play not only in maintaining discipline but also for performing their duties as Cos. and if the competent authority thought it fit and proper that case for study leave for COs should be considered and this benefit should not be given to other categories of officers, as for this category, army authorities take adequate care for training them in their own institutions or outside, it cannot be said that the impugned Army Order 11 of 1987 is arbitrary or irrational. The classification cannot be said to be arbitrary in violation of Articles 14 and 16 of the Constitution. The ratio of decision in the case of K. Madhavan and another v. Union of India and others, 1987(4) Supreme Court Cases 566 where the expression on a regular basis was interpreted, has been noticed by the Supreme Court in Union of India and others v. K.B. Rajoria, 2000(3) Supreme Court Cases 562. In K. Duraiswamy and another v. State of T.N. and others, 2001(2) Supreme Court Cases 5381he question for consideration was whether GOMs No. 55 dated 9.2.1999 issued by the Government of Tamil Nadu, Health and Family Welfare (MCA) Department laying down the procedure for selection of candidates for admission to postgraduate diploma, degree, MDS and higher-specialty courses for academic session 1999-200 reserving 50% of seats in favour of in service candidates on merit basis and also enumerated various categories of Medical Officers, who alone were to be treated as service candidates and for the remaining 50%, referred to as open quota, all other eligible Medical Officers, were stated to be eligible to apply for the same was in violation, of Articles 15(4) and 16(4) of the Constitution of India or Not ? The Supreme Court held as under: (SCC PP-545, 547 and 548 Paras 8, 11 and 12). "8. That the Government possesses the right and authority to decide from what sources the admissions in educational institutions or to particular disciplines and courses therein have to be made and that too in what proportion, is well established and by now a proposition well settled, too. It has been the-consistent and authoritatively-settled view of this Court that the super-specialty level, in particular, and even at the postgraduate level reservations of the kind known as "protective discrimination" in favour of those considered to be backward should be avoided as being not permissible. Reservation, even if it be claimed to be so in this case, for and in favour of the in-service candidates, cannot be equated or treated on part with communal reservations envisaged under Articles 15(4) or 16(4) and extended the special mechanics of their implementation to ensure such reservations to be the minimum by not counting those selected in open competition on the basis of their own merit as against the quota reserved on communal considerations. 11. On a consideration of the reasoning of the Full Bench as also the construction placed upon the Government Order and the prospectus, we are of the view that the State Government, in the undoubted exercise of its power, has rightly decided, as a matter of policy, so far as the admissions to super-specialty and postgraduate diploma/degree/MDS courses for the academic session 1999-2000 are concerned to have scheme or pattern of two sources of candidates based upon a broad classification into two categories, i.e., in-service candidates and non-service or private candidates with each one of them allocated exclusively for their own respective category of candidates fifty per cent of the seats, the ultimate selection for admission depending upon the inter se merit performance amongst their own category of candidates. As pointed out by the Full Bench, the change in the nomenclature of the categorization from "open competition" in 1998-1999, the "open quota" in 1999-2000 arid the conspicuous omission in the scheme and the prospectus for 1999T 2000 of a specific stipulation like the one contained in clause X(5) in the prospectus for 1998-19999 that the 50% of the seats available for open competition shall be made available for selection and admission of both service and non-service candidates, as also the stipulation contained in the Government Order and the prospectus for 1999-2000 under the caption "Criter4a for selection under 50% open quota", which specifically regards that all other eligible Medical Officers except those specified in clause (iii)(d) above (meaning thereby Medical Officers who will be treated as service candidates and allowed to apply as such) are eligible to apply under 50% of the open quota, supports the stand of the State Government and the Selection Committee and justifies the selections for admission already made by them. The further stipulation that the reservation will be confined to and kept at 50% in favour of the in-service candidates on merit basis, coupled with the other provisions noticed above make it abundantly clear that the selection of the in-service candidate is confined to and has to be kept at 50% only of the total seats and not against any of the other seats, exclusively earmarked for the non-service or private candidates. 12. The mere use of the word "reservation" per se does not have the consequence of ipso facto applying the entire mechanism underlying the constitutional concept of a protective reservation specifically designed for the advancement of any specially-and-educationally backward classes of citizens or for the Schedule Castes and the Schedule Tribes, to enable them to enter and adequately represent in various fields. The meaning, content and purport of that expression will necessarily depend upon the purpose and object with which it is used. The meaning, content and purport of that expression will necessarily depend upon the purpose and object with which it is used. Since reservation has diverse natures and may be brought about in diverse ways with varied purposes and manifold objects, the peculiar principles of interpretation laid down by the courts for implementing reservations envisaged under the Constitution in order to ensure adequate and effective representation to the backward classes as a whole cannot be readily applied out of context and unmindful of the purpose of reservations as the one made in this case, more to safeguard the interest of candidates who were already in service to enable such in-service candidates to acquire higher and advanced education in specialized fields to improve their professional talents for the benefit of the patients to be treated in such medical institutions where the in-service candidates are expected to serve. That apart, where the scheme envisaged is not by way of a mere reservation but is one of classification of the sources from which admissions have to be accorded, fixation of respective quota for such classified groups, the principles at times applied in construing provisions relating to reservation simpliciter will have no relevance or application. Though the prescription of a quota may involve in a general sense reservation in favour of the particular class or category in whose favour a quota is fixed, the concepts of reservation and fixation of quota drastically differ in their purport and content as well as the object. Fixation of a quota in a given case cannot be said to be the same as a mere reservation and whenever a quota is fixed or provided for one or more of the classified group or category, the candidates falling in or answering the description of different classified groups in whose favour a respective quota is fixed have to confine their respective claims against the quota fixed for each of such category, with no one in one category having any right to stake a claim against the quota earmarked for the other class or category.........................................................- . 20. 20. In the present case 66.6% out of 75% seats will have to be filled in by in-service regularly appointed HPHS-I Himachal Pradesh Health Cadre and it cannot be termed to be reservation of seats to such category of a persons but it can only be said to be a percentage of seats for such in service regularly appointed doctors in HPHS-I Cadre for which the claim of the petitioner is not found tenable and sustainable. The petitioner cannot stake his claim that 33.3% seats, named direct seats made available by open competition from amongst the graduates of Indira Gandhi Govt. Medical College and other categories of candidates are also in violation of article 14 of the Constitution. The petitioner was eligible and entitled to complete in 25% seats in Degree and Diploma Course though All India Entrance Test Examination under Clause 3.1 group A. For the above said I reasons, we are not persuaded to accept the contention of the learned Counsel for the petitioner that clause 3.2(i) Group-B of the prospectus , for Sessions 2001-2003/2004 is violative of Article 14 of the Constitution. 21. According to the petitioner, he submitted his application along with letter dated 4.11.2001 for appearing in the Entrance Test in the Block Medical Officer, Chandi, District Solan. His application along with its enclosures was forwarded by the Block Medical Officer to the Chief Medical Officer for onward transmission to the higher authority. In supplementary affidavit by under Secretary (Health), to the Government of Himachal Pradesh, it was stated that the Chief Medical Officer, Solan reported to the Secretary (Health) regarding the absence of petitioner from duty w.e.f. 1.10.2001 and thereafter he did not resume his duty. From the contents of the supplementary affidavit it is manifestly clear that at the time of applying for admission to Post Graduate Course, filing of the present writ petition and permitting the petitioner to appear provisionally in the Entrance Test, he was not serving in P.H.C. Patta (Mehlog), Solan where he was posted and in his place Dr. Neelinder Dheer was posted by the department in the month of February, 2002. In these circumstances the department has issued a memorandum to the petitioner giving one months notice to him to explain his position within a weeks time as to why his contractual appointment should not be terminated after the expiry of period of the notice. Neelinder Dheer was posted by the department in the month of February, 2002. In these circumstances the department has issued a memorandum to the petitioner giving one months notice to him to explain his position within a weeks time as to why his contractual appointment should not be terminated after the expiry of period of the notice. No counter in opposition to the supplementary affidavit of the State has been filed by the petitioner. Thus, in these circumstances, the petitioner cannot be said to be in Govt. service after he voluntarily left the job on 1.10.2001 and thereafter he has not availed the tenure of his extended period of contract which is going to expire on 30.6.2002. 22. No other point was urged by the learned Counsel for the parties. 23. In the result, there is no merit in the writ petition and it is accordingly dismissed. Notice discharged. In the facts and circumstances, there will be no order as to costs. Interim order dated 27.12.2001 shall sand vacated. 24. In view of. The dismissal of the writ petition, CMP No. 478 of 2002 filed by applicants Ankur Sood, Sunil Taneja, Sameer Vyas, Ms. Nidhi Shandil and Sameer Kakkar under Order 1 Rule 10 of the Code of Civil Procedure for their impleadment as party respondents in the writ petition does not survive and it is stands accordingly disposed of.