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2016 DIGILAW 467 (HP)

Rahul Bhardwaj v. State of Himachal Pradesh

2016-04-12

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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Judgment : Tarlok Singh Chauhan, Judge. The issue involved in this writ petition hinges around the question whether the contractual Medical Officers can be treated to be and considered alongwith “in-service candidates” against 66.6% quota seats meant for them in the admission to the Post Graduation Courses. Facts in brief may be noticed. 2. All the petitioners are eligible for being considered for admission to the aforesaid course. An All India Medical Entrance Examination is conducted by the National Board of Examination and out of the total seats which are available in the various Medical Institutions in the country, 50% of these are filled-up on All India Basis while the remaining 50% are filled-up in a manner which is prescribed by the respective States or the Institutions. The National Board of Examination in December, 2015, conducted the All India Post Graduate Medical Entrance Examination in which the petitioners secured 899.1858/1500, 1026.8073/1500, 855.1582/1500 and 918.4094/1500 marks, respectively in the said examination. 3. The respondents in March, 2016, issued a prospectus-cum-application form for counselling and admission for Post Graduate MD/MS Courses and Clause 3.1(A) thereof reads thus:- “3.1(A) HPHS (In-service GDO) Group (i) 66.6% State Quota seats will be filled-up by in service Medical Officers (Regular/Contract/RKS). There will be a single merit to fill up 66.6% State Quota Seats.” 4. The petitioners have sought quashing of the aforesaid clause on the ground that the respondents have failed to maintain the proportion of representation of “in-service regular” and “contractual Medical Officers” and have illegally treated even the “contractual Medical Officers” as “in-service candidates”. According to the petitioners the “contractual Medical Officers” are nothing more than that backdoor entrants, who are appointed without any due selection on the basis of the walk-in-interviews and thereafter cannot be considered as “in-service candidates” alongwith the petitioners. 5. In reply to the petition, the respondents have categorically stated that the issue in question already stands adjudicated by this Court in a batch of writ petitions, the lead case being, CWP No.1776 of 2015, titled as, Dr.Vivek Kumar Garg and others versus State of Himachal Pradesh and others, decided on 18.06.2015, wherein this Court while construing clause 3.1(A) categorically held all the “in-service candidates” to be comprising of one class/group and the action of the State Government in creating, classifying and then dividing these homogenous class/group was quashed. We have heard the learned counsel for the parties and have gone through the records of the case. 6. Clause 3.1 (A) of the earlier prospectus-cum-application form issued for the academic session 2015-18 reads thus:- “ELIGIBILITY & DISTRIBUTION OF SEATS 3.1 (A) HPHS(In-service GDO) Group. (i) 66.6% of the State Quota Seats will be filled up by in-service Medical Officers. The in-service group will consist of two subgroups i.e. one sub-group consisting of regularly appointed Medical officer and second sub-group consisting of Contractual and Rogi Kalyan Samiti appointees. The distribution of seats between regular and those appointed on contract basis including Rogi Kalyan Samiti appointees will be made in the ratio proportionate to their total number as on 31.10.2014. For the academic session 2015-18, the distribution of seats between above two sub-groups will be in the ratio of 2:1.” 7. While construing the clause 3.1(A) (supra), this Court in CWP No.1776 of 2015, titled as Dr.Vivek Kumar Garg and others versus State of Himachal Pradesh and others decided on 18.06.2015 had specifically held that in-service group consists of two further sub-groups i.e. one sub-group consisting of regularly appointed Medical officers and second sub-group consisting of Contractual and Rogi Kalyan Samiti (‘RKS’) appointees. The distribution of seats between regular and those appointed on contract basis including Rogi Kalyan Samiti is to be made in the ratio proportionate to their total number. It was further held that the criteria for filling up the seats was on merit alone and though the State had created the aforesaid two sub-groups, nonetheless, all the Medical Officers appointed either on regular basis, contractual basis or by ‘RKS’ and have been permitted to sit in the examination would loose birthmark of their initial recruitment either as Medical Officers appointed on regular basis, contractual basis or by ‘RKS’ and they have to be treated as one class/group. The action of the State Government in creating and classifying and by dividing the HPHS in-service GDOs appointed either on regular, contractual basis or appointed by ‘RKS’ was held to be based on no intelligible differentia so as to distinguish one group of Medical Officers or the other group. It shall be apt to reproduce paras 13, 14 and 28 of the judgment which read thus:- “13. After the 3rd point, the process was to be repeated again. It shall be apt to reproduce paras 13, 14 and 28 of the judgment which read thus:- “13. After the 3rd point, the process was to be repeated again. The respondent-State issued communication on 16.3.2015, whereby 4 point roster was to be applied for allotment of seats between GDO regular and GDO contract (including the RKS), on the basis of the respective in-position strength ratio of both the categories as on 31.10.2014. Initially as per para 3.5 (iii), the first two seats were to be allotted to GDO (Regular) and thereafter 3rd to GDO (Contract), but after the notification of 16.3.2015, the first two seats would go to GDO(Regular) and 3rd to GDO (Contract) and thereafter 4th to GDO (Regular). 14. It is settled law that for filling up the MD/MS/MDS seats, the criteria should be merit alone. The respondent-State has created two groups within the HPHS (In-service GDO) group, comprising of regularly appointed Medical Officers and contractual/Rogi Kalyan Samiti appointees. The respondent-State has also created sub-groups in the In-service GDO (MO Dental) Group seats, comprising of two sub-groups; one sub-group comprising of regularly appointed Medical Officers and other comprising of contractual/Rogi Kalyan Samiti appointees. All the Medical officers appointed either on regular basis, contractual or by RKS, discharge the same duties. Once they have been permitted to sit in the examination, they would loose birthmark of their initial recruitment either as Medical Officers appointed on regular basis or contractual or appointed by the RKS. They have to be treated as one class/group. The respondent-State has created the classification within the classification by dividing the HPHS inservice GDOs appointed either on regular basis or on contractual basis or appointed by RKS for the purpose of distribution/allotment of seats. There is no intelligible differentia so as to distinguish one group of Medical officers from the other group. They are all Medical officers and possess essential qualifications to sit in the Post Graduate Courses on the basis of All India Test. The respondent-State has further perpetuated the illegality by introducing new roster as per Annexure P-8 on 16.3.2015, whereby the candidates belonging to GDO (Regular), irrespective of their merit would get the first and second seat. The 3rd seat would go to contractual and the 4th again to regularly appointed GDO. The respondent-State has further perpetuated the illegality by introducing new roster as per Annexure P-8 on 16.3.2015, whereby the candidates belonging to GDO (Regular), irrespective of their merit would get the first and second seat. The 3rd seat would go to contractual and the 4th again to regularly appointed GDO. The best available method as per the settled law would have been to fill up the MD/MS/MDS courses, strictly as per the marks obtained by in-service candidates, irrespective of their category. 28. Accordingly, the Writ Petitions are allowed. The allotment of seats/roster points on the basis of sub-groups comprising of regularly appointed Medical Officers, contractual and Rogi Kalyan Samiti appointees and sub groups comprising of regular Medical Officers (Dental) and second group comprising of contractual and Rogi Kalyan Samiti appointees as per clause 3.1(A) (i) of the Prospectus-cum-Application Form for counselling and admission for postgraduate Degree(MD/MS) Courses and clause 3.6(b)(iii) of the Prospectus-cum-Application Form for counselling and admission for postgraduate Degree(MDS) Courses for the academic session 2015-18, respectively, are quashed and set aside. The admissions made to MD/MS/MDS courses on the basis of the first counselling, second counselling and 3rd counselling under clause 3.1(A)(i) of both the Prospectus under HPHS (In-service GDO) Group and in-service GDO (MO Dental) Group seats are also quashed and set aside. The respondents are directed to re-do the entire selection process by filling up the MD/MS/MDS seats, strictly as per the merit list on the basis of All India Post Graduate Medical Entrance Examination and All India Post Graduate Dental Entrance Examination, within a period of one week from today in order to adhere to the time schedule framed by the Hon’ble Supreme Court of India qua HPHS (Inservice GDO) Group and in-service GDO (MO Dental) Group. Pending application(s), if any, shall also stand disposed of.” 8. Pending application(s), if any, shall also stand disposed of.” 8. Notably, one of the candidates preferred Special Leave Petition (Civil) No.17052/2015 against the aforesaid decision in case titled as Kirti Rana and another versus Vivek Kumar Garg and others before the Hon’ble Apex Court and an interim order to the following effect was passed on 01.07.2015:- “Learned Additional Advocate appearing for respondent Nos.4 to 8 makes a statement that following the time schedule fixed by this Court for making admissions to medical institutions, the State Government has already completed the process of admissions for the Academic Year 2015-16 and that whatever order is rendered by the Court can be applied for the future academic years. We appreciate such a stand made on behalf of the learned counsel for respondent Nos.4 to 8. Therefore, whatever admissions are made based on the prospectus already issued shall be maintained for the Academic Year 2015-2016.” 9. It is, thus, clear that the prospectus now issued for the academic session 2016-2019 has been issued in strict compliance to the directions passed by this Court in Dr.Vivek Kumar Garg’s case (supra) and in terms of the undertaking furnished before the Hon’ble Apex Court on 01.07.2015. 10. Having held out before the Hon’ble Supreme Court that the admissions on the basis of the judgment rendered by this Court would be applied for future academic years and the same having been accepted by the Hon’ble Supreme Court, the official respondents are bound by the undertaking and in case the petitioners were aggrieved then they should have sought their remedy elsewhere. 11. The issue raised in this petition is squarely covered by the judgment rendered by a Co-ordinate Bench of this Court in Dr.Vivek Kumar Garg’s case (supra) and the same is binding upon this Court. The instant petition is, therefore, totally misconceived and not maintainable and is, therefore, dismissed alongwith all pending application(s), if any, leaving the parties to bear their own costs.