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Himachal Pradesh High Court · body

2016 DIGILAW 2646 (HP)

DINESH KUMAR SHARMA v. STATE OF HIMACHAL PRADESH

2016-12-13

PREM KUMAR, V.K.SHARMA

body2016
JUDGMENT : 1. The original application has been filed on the following substantive prayer vide, para 7 (a):- 7. (a) "That, the respondents No. 1 to 3 may kindly be directed to issue the appointment order of the applicant as SR (ENT), IGMC Shimla." 2. At the relevant point of time, both the applicant and private respondent No. 7 were in the employment of respondent No. 1-State of Himachal Pradesh as GDOs, the former at Civil Hospital, Sarkaghat, District Mandi and the latter at Regional Hospital, Solan. 3. The process for selection of Senior Residents in Indira Gandhi Medical College (IGMC), Shimla byway of walk-in-interview was initiated, vide advertisement Annexure A-1. The interview was to be held on 26.03.20 16. Both the applicant as well as private respondent No. 7 appeared in the interview in the Department of ENT along with other candidates. 4. Subsequently, the process for selection of Senior Residents in Dr. Yashwant Singh Parmar Government Medical College (Dr. YSPG Medical College), Nahan by way of walk-in-interview was also started, vide separate advertisement forming part of Annexure A-1. The interview was fixed for 05.05.2016. Again, both the applicant as also private respondent No. 7, inter alia, appeared in the interview for selection as Senior Residents in the ENT Department of the said College at Nahan. 5. Though the process by IGMC, Shimia was initiated earlier, it so happened that result of the interview for appointment in the College at Nahan was declared first. Private respondent No. 7 being the selected candidate against the lone post, submitted joining at Nahan, vide report dated 11.05,2016, Annexure A-10(a). Soon thereafter, vide communication dated 12th May, 2016, Annexure A-10, she informed respondent No. 3, the Principal, IGMC, Shimla, that "I hereby withdraw my candidature for this post of S.R.E.N.T. IGMC as I have already joined as S.R.E.N.T. in Dr. YSGP Medical College Nahan (H.P.) on 11.5.2013." 6. In the foregoing background, the applicant, who in the meanwhile had approached this Tribunal by way of O.A. No. 1361 of 2016, Dr. YSGP Medical College Nahan (H.P.) on 11.5.2013." 6. In the foregoing background, the applicant, who in the meanwhile had approached this Tribunal by way of O.A. No. 1361 of 2016, Dr. Dinesh Kumar Sharma v. State of Himachal Pradesh and others, wherein though private respondent No. 7 was not impleaded as a party, withdrew the original application, vide order dated 17.05.2016, Annexure A-15, text whereof is as under:- "In view of the statement at the bar made by the learned counsel for the applicant that owing to subsequent events, the original application has been rendered infructuous, the same is disposed of accordingly, with liberty to the applicant to seek his remedy, if any, in accordance with law, if need to do so at all arises in future and if so advised." 7. Thereafter, vide office order dated 25.05.2016, Annexure A-2, private respondent No. 7 was relieved from Dr. YSPG Medical College, Nahan with a direction to submit joining at her original place of posting immediately. Accordingly, she joined at Regional Hospital, Solan, vide report dated 26.05.2016, Annexure A-5. However, strangely enough, on the same very day, when private respondent No. 7 was relieved from Dr. YSPG Medical College, Nahan on 25.05.2016, vide Annexure A-2, and directed to join at the place of her original place of posting immediately, that order was withdrawn, vide another office order of even date, Annexure A-4. However, subsequently, office order dated 25.05.2016, Annexure A-4, whereby relieving of private respondent No. 7 was withdrawn, was also withdrawn, vide office order dated 05.06.2016, Annexure R/7-4. 8. In the meanwhile, with reference to the communication dated 12th May, 2016, Annexure A-10, sent by private respondent No. 7 to respondent No. 3, the Principal, IGMC, Shimla, memo, dated 06.06.2016, Annexure R-7/A, was sent by the latter (the Principal, IGMC, Shimla) to the former (private respondent No. 7), text where of is as under:- "INDIRA GANDHI MEDICAL COLLEGE SHIMLA-1 No. HFW(MC)B(2)18/201 1-VI-12516-17 Dated Shimla-1, the 6/6/2016 To Dr. Monika Sood W/O Dr. Vinod Chauhan, R/O Village Ratoli, PO Pabiana, Tehsil Rajgarh, Distt. Sirmour (HP). Subject:- Withdrawl of candidature from the post of Senior Resident (E.N. T.) at IGMC, Shimla. Memo: Refer to your application received through e-mail on dated 12.5.2016 (copy enclosed) vide which you have withdrawn your candidature from the post of Sr. Resident (ENT) I.G.M.C. Shimla on account of your recent appointment as Sr. Resident (ENT) in Dr. Sirmour (HP). Subject:- Withdrawl of candidature from the post of Senior Resident (E.N. T.) at IGMC, Shimla. Memo: Refer to your application received through e-mail on dated 12.5.2016 (copy enclosed) vide which you have withdrawn your candidature from the post of Sr. Resident (ENT) I.G.M.C. Shimla on account of your recent appointment as Sr. Resident (ENT) in Dr. Y.S.P. Govt. Medical College, Nahan (HP). As per record of this office, you had appeared for walk-in-interview for the post of Sr. Resident in the Department of E.N.T. at I.G.M.C. Shimla, conducted by this office on 26.3.2016. The result of the same is yet to be declared by this office. An email has been received on 12.5.2016 vide which you have given your consent to withdraw your candidature from the offer of appointment of Sr. Resident (ENT) IGMC, Shimla. Since the said walk-in-interview has already been conducted by this office on 26.3.2016 and process to declare its result is at final stage and as such you are directed to give your undertaking with regard to surrender your seat so that next incumbent can be considered for appointment against the aforesaid post at the earliest. Sd/- Principal I.G. Medical College, Shimla Endst. No. As above/- Dated Shimla-1, the Copy to:- 1. The Principal, Dr. Y.S.P. Govt. Medical College, Nahan (HP) for information and necessary action, it may please be confirmed to the undersigned at your earliest as to whether Dr. Monika Sood has joined as Sr. Resident (ENT) at Dr. Y.S.P. Govt. Medical College, Nahan or not. In case she has joined her joining report may also be furnished to this office at the earliest please. Sd/- Principal I. G. Medical College, Shimla" 9. In response to the above memo, dated 06.06.2016, Annexure R-7/A, private respondent No. 7 wrote to respondent No. 3, the Principal, IGMC, Shimla, vide letter dated 8.6.2016, Annexure R-7/B: "to consider positively my consent to join as Senior Resident in department of ENT at IGMC Shimla, if selected. Hence, sir my consent is still there to join at IGMC, as has been asked by you." 10. However, in the meanwhile, by way of turn of events, memo, dated 10.06.2016, Annexure A-12, was issued by respondent No. 4, the Principal, Dr. YSPG Medical College, Nahan, to private respondent No. 7, which is to the following effect:- "No. H FW-N/Estt./2016-Dated: Nahan, the 2016 Office of the Principal Dr. Y.S. Parmar Govt. However, in the meanwhile, by way of turn of events, memo, dated 10.06.2016, Annexure A-12, was issued by respondent No. 4, the Principal, Dr. YSPG Medical College, Nahan, to private respondent No. 7, which is to the following effect:- "No. H FW-N/Estt./2016-Dated: Nahan, the 2016 Office of the Principal Dr. Y.S. Parmar Govt. Medical College, Nahan, District Sirmaur. To Dr. Monika Sood, Medical Officer, Regional Hospital Solan, through CMO Solan, Subject: Submission of False information and suppression of facts regarding Joining as Sr. Resident (ENT) at Dr. Y.S. Parmar Govt. Medical College Nahan. Memo, Refer to this office letter no. HFW N/Estt./2016-541-4 dated 8.6.2016, wherein your withdrawal of your relieving from this institution was withdrawn at your request when you reported as having not actually joined as Sr. Resident (ENT) at this institution after you were relieved by the Medical Superintendent Regional Hospital Solan. It has been verified from the record that you had actually joined on 11.5.2016 in the office of the undersigned, and you have not resigned from the present assignment also. There is one O.A. number 1361 of 2016 Dr. Dinesh Kumar Sharma s/o Sh. Jagdish Sharma v. Govt.; and, you have sent an email to the Principal IGMC Shimla in which you have mentioned about the withdrawn of your candidature for the post of Sr. Resident (ENT) by writing as "I hereby withdraw my candidature for the post of Sr. Resident (ENT) IGMC as I have already joined at Dr. YSPGMC Nahan on 11.5.2016." In view of the above facts, which you have not revealed and brought to light and in the knowledge of the undersigned the real facts; So you are hereby directed to explain your position within 3 days from the issuance of this memo, failing which strict disciplinary action will be taken against you as per Rules. Sd/- Principal Dr. Y.S.P.G.M.C. Nahan District Sirmaour (HP). Endst. No. As above. 589 Dated 10/6/2016 Copy to: 1. The Principal Secretary (Health) to the Govt, of Himachal Pradesh for information please. 2. The Director Health Services Himachal Pradesh for information please. 3. The Director, Medical Education & Research, HP Shimla-9 for information please with the request that she may not be appointed as Sr. Resident at IGMC Shimla till her position is cleared. 4. The Principal IGMC Shimla for information please with the request that she may not be allowed to join as Sr. 3. The Director, Medical Education & Research, HP Shimla-9 for information please with the request that she may not be appointed as Sr. Resident at IGMC Shimla till her position is cleared. 4. The Principal IGMC Shimla for information please with the request that she may not be allowed to join as Sr. Resident as she has not conveyed the true facts as regards her joining at this institution. 5. The Chief Medical Officer Solan with the request to ensure the service of this memo to the officer concerned. 6. Guard File. Sd/- Principal Dr. Y.S.P.G.M.C. Nahan District Sirmaour (HP)." 11. The above memo, dated 10.06.2016, Annexure A-12, was replied by private respondent No. 7, vide reply, Annexure R/7-5, which reads as under:- To The Director Health Services Kasumpti Shimla. Subject: Regarding post of Senior Resident at IGMC Shimla. Sir, With due regards, I want to inform you that I was asked telephonically to join at Nahan at Dr. Y.S. Parmar Medical College, written order was given lateron. Since it was question of my carrier I joined as Senior Resident at Nahan on 11-05-2016on telephonic order. Later I came to know that since case of Senior Resident at IGMC Shimla was in High Court and candidate was not assured that who will be selected therefore I joined at Nahan. Lateron after my joining at Nahan, court case was decided where I was selected at No. 1 for IGMC Shimla. Therefore I given my consent for Senior Resident at IGMC Shimla. The case of my joining as Senior Resident at Nahan virtually my selection at IGMC Shimla were cooked and falsely produced before Director Health Services by Dr. Dinesh Sharma with false statement. Though I have not concealed any facts about my selection at 2 places. But is overlapping of selection of 2 places on a very very short time period and that's why I promptly conveyed to Principal IGMC Shimla that I want to join at IGMC Shimla. However Principal Nahan relieved me from there on 25-5-2016 and I automatically given my consent for IGMC Shimla. In view of above facts I never concealed any facts from either of 2 Principal. However candidate is selected at 2 places she has choice to choose the best. Therefore I prefer to join at IGMC Shimla. However Principal Nahan relieved me from there on 25-5-2016 and I automatically given my consent for IGMC Shimla. In view of above facts I never concealed any facts from either of 2 Principal. However candidate is selected at 2 places she has choice to choose the best. Therefore I prefer to join at IGMC Shimla. In view of above I request you sir since I have a choice to join at IGMC Shimla I may be given chance. Yours truly Sd/- Dr. Monika Sood Regional Hospital Solan 12. On receipt of the above reply, respondent No. 4, the Principal, Dr. YSPG Medical College, Nahan, referred the matter in detail to the Special Secretary (Health) to the Government of Himachal Pradesh, vide letter dated 28th July, 2016, Annexure 15(A), with the following recommendation:- "Therefore, in view of the submissions made herein above, it is requested that appropriate order may kindly be passed whereby Dr. Monika Sood must be declared as Debarred from doing Senior Residency for a period of three years from the date of the Order. This is requested to be done in order to inculcate a sense of responsibility and discipline amongst the members of the feeder cadre of Senior Resident." 13. In the above backdrop, when ultimately the result was declared by IGMC. Shimla, private respondent No. 7 was admittedly number one in the merit list for the lone seat in the Department of ENT, the applicant being next in the merit. 14. In the above factual matrix, whereas the applicant contends that in view of the terms and conditions contained in the advertisement notice, Annexure A-1, regarding 'REPEATTENURE REGULATION', which is extracted below, it being a case of REPEAT TENURE', private respondent No. 7 is liable to be debarred from doing Senior Residency for a period of three years:- "REPEATTENURE REGULATION: i) There will be no repeat tenure for in- service GDOs (including contractual appointees) as Senior Residents in any speciality. ii) The repeat tenure will be available to only Direct candidates. Provided that repeat tenure will be for six months at a time. iii) If a Direct candidate selected as Senior Resident is unable to complete the term of three years, he/she will be eligible to appear in the interview of Senior Resident and get selected in the same or other speciality. He/she will also be entitled to be selected as Sr. iii) If a Direct candidate selected as Senior Resident is unable to complete the term of three years, he/she will be eligible to appear in the interview of Senior Resident and get selected in the same or other speciality. He/she will also be entitled to be selected as Sr. Resident in a super speciality. iv) If an in-service GDOs is unable to complete the term of three years he/she shall stand debarred from doing Senior Residency fora period of three years." 15. Per contra, it is submitted on behalf of private respondent No. 7 that the delay in declaration of the result was on the part of IGMC, Shimla, without there being any fault on her part. It being so, she should not suffer for the same. According to her, denial of admission to her in IGMC, Shimla would amount to overlooking merit, which is not legally permissible. It is also contended that she has a fundamental right to be considered for the post of Senior Resident in the Department of ENT in IGMC, Shimla and such right cannot be waived. 16. We have heard the learned Senior Counsel assisted by the learned Counsel appearing on behalf of the applicant and private respondent No. 7 and the learned Additional Advocate General assisted by the learned Deputy Advocates General and perused the record. 17. In our considered view, it is not a case of 'REPEAT TENURE' as contended on behalf of the applicant. The reasons to arrive at this conclusion at the very outset are set out hereinafter. The applicant had joined at Nahan, vide report Annexure A-10(a), on 11.05.2016 and was relieved, vide office order dated 25.05.2016, the intervening period being only of two weeks. Thus, neither it can be said that she was unable to complete the term of three years as stipulated under the terms and conditions of advertisement, Annexure A-1, vis-a-vis 'REPEAT TENURE REGULATION'. 18. However, the fact remains that once private respondent No. 7 had joined as Senior Resident in Dr. Thus, neither it can be said that she was unable to complete the term of three years as stipulated under the terms and conditions of advertisement, Annexure A-1, vis-a-vis 'REPEAT TENURE REGULATION'. 18. However, the fact remains that once private respondent No. 7 had joined as Senior Resident in Dr. YSPG Medical College, Nahan in the Department of ENT, vide report dated 11.05.2016, Annexure A-10(a), and had also withdrawn her candidature in IGMC, Shimla, vide communication dated 12th May, 2016, Annexure A-10, which though she subsequently retracted, would amount to abandoning the seat in IGMC, Shimla for the simple reason that she cannot be permitted to approbate and reprobate at the same time and more so, in the given facts and circumstances, when the concerned authorities have attributed motive against her alleging that she has misled the authorities in relieving her from Dr. YSPG Medical College, Nahan so as to enable her to join back at Regional Hospital, Solan to give the entire sequence of events a colour that she still continued to be a GDO and had not joined Senior Residency at Dr. YSPG Medical College, Nahan. 19. The above discussion brings us to hold that once private respondent No. 7 had joined as Senior Resident at Dr. YSPG Medical College, Nahan, she had forfeited the right to be considered for the post of Senior Resident in IGMC, Shimla. However, in the peculiar facts and circumstances, in case private respondent No. 7 is still willing to join as Senior Resident in Dr. YSPG Medical College, Nahan, respondents No. 1 to 6/competent authority(s) may consider her prayer in that regard sympathetically. 20. As a result, the original application is disposed of in the above terms with a direction to respondents No. 1 to 3 and 5/competent authority(s) to take further action in the matter in the light of this order as expeditiously as possible, preferably by 31st December, 2016.