Research › Search › Judgment

Himachal Pradesh High Court · body

2020 DIGILAW 591 (HP)

Uday Bhanu Rana v. State of Himachal Pradesh

2020-09-14

AJAY MOHAN GOEL

body2020
JUDGMENT Ajay Mohan Goel, J. - By way of this petition, the petitioner has inter alia prayed for the following substantive reliefs:- "(iii) That the respondents may be directed to issue post PG teaching experience of 3 years as Senior Resident in OBG to the applicant. (iv) That the respondents may be directed to issue NOC to the applicant so as to enable him to compete for Fellowship Programme in Minimally Invasive Gynecological Surgery in AIIMS." 2. Brief facts necessary for the adjudication of the present petition are as under:- The case of the petitioner is that he did his MBBS in October, 2008 and thereafter joined the Health Department of the State as a Medical Officer at CHC Kotli, on contract basis. He undertook his Post Graduation course as an in-service candidate, in the specialty of Obstetrics & Gynecology from IGMC, Shimla, which course he completed in July, 2015. Thereafter, he was posted as a Medical Officer at Regional Hospital, Kullu. 3. Vide Annexure A-1, the petitioner was transferred by way of adjustment from Regional Hospital Kullu to Kamla Nehru Hospital, Shimla. He joined his duties at Kamla Nehru Hospital w.e.f. 10.08.2015. According to the petitioner, from the date of his posting at Kamla Nehru Hospital, Shimla, he was called upon to and he discharged the duties of a Senior Resident. To substantiate this fact, the petitioner has appended with the petition the duty roster of the Senior Residency in Kamla Nehru Hospital, Shimla collectively as Annexure P-3, in which, the name of the petitioner is reflected as a Senior Resident. Further, as per the petitioner, on 14.09.2018, a Prospectus was uploaded on the web portal of AIIMS, New Delhi (Annexure P-4), inviting applications from eligible candidates for fellowship programme in Minimally Invasive Gynecological Surgery. The requisite qualification of the said fellowship programme was Postgraduate Degree in Obstetrics & Gynecology or equivalent Degree with 3 years post Post Graduation teaching experience as a Senior Resident. According to the petitioner, as he had three years teaching experience as a Senior Resident after doing Post Graduation, he was fully eligible for said assignment. He applied for the programme in issue on 27.9.2018, and before that, he had applied to respondent No. 2 to issue in his favour the requisite teaching experience, which was done through proper channel. 4. He applied for the programme in issue on 27.9.2018, and before that, he had applied to respondent No. 2 to issue in his favour the requisite teaching experience, which was done through proper channel. 4. The petition was filed as an Original Application before the Erstwhile learned Himachal Pradesh Administrative Tribunal by the petitioner inter alia with the prayer that as the last date for submission of experience certificate/no objection certificate was 17.10.2018, therefore, directions be issued to the respondents to issue the experience certificate of Senior Residency in his favour so that he was in a position to apply for the programme in issue. 5. It is further the case of the petitioner that in terms of the policy of the State Government, after doing Post Graduation, an in-service candidate is appointed as a Senior Resident after an incumbent has served in peripheral Institutions for the number of years, as mentioned in the Policy i.e. two years. As the Department was not having sufficient number of qualified Post Graduate Doctors to be posted as Senior Residents, Post Graduate Doctors in the Specialty concerned were invariably posted as Senior Residents without insisting for the condition of peripheral service of two years. According to the petitioner, once an incumbent stood posted as a Senior Resident and he actually performed the duties of Senior Resident, then, such an incumbent could not be refused the experience certificate for having served as Senior Resident, simply on the ground that after doing his post graduation, he had not served in peripheral institutions for two years before being posted as a Senior Resident, and to this extent, the policy of the Government is not sustainable in law. It is in this backdrop that the petition stands filed with the prayers already enumerated hereinabove. 6. The stand of the State is that the petitioner is not entitled for the reliefs prayed for, for the reasons that in terms of the policy of the State Government, an in-service candidate who has done his Post Graduation, is not eligible to be posted as Senior Resident until and unless he puts in two years service in peripheral areas, and thereafter, stood appointed as a Senior Resident. The stand of the State is that the petitioner was appointed in Kamla Nehru Hospital, Shimla, on his request, as is evident from the transfer order itself and was not posted at Kamla Nehru Hospital, Shimla, as a Senior Resident, as alleged by the petitioner, but his posting was only as a Medical Officer. It is further the stand of the State that simply because in certain duty rosters, the petitioner stands referred as Senior Resident, this does not confers upon him any right to be treated as a Senior Resident or being eligible to gain the experience certificate. On these basis, the respondent-State has prayed that the petition be dismissed. 7. I have heard learned Senior Counsel appearing for the petitioner as well as learned Senior Additional Advocate General and gone through the pleadings as well as other documents appended therewith. 8. It is not in dispute that in terms of the policy in vogue with regard to the appointment of Senior Residents in the Government owned Medical Colleges in the State of Himachal Pradesh, condition precedent is that an incumbent after doing his Post Graduation, has to serve in peripheral areas, to be appointed as a Senior Resident. It is pertinent to mention that posts of Senior Residents in the Government Medical Colleges are stand alone posts and the same are not of the cadre of the Medical Officers as maintained by the Health Department. During the course of the arguments, on a query put by the Court, this Court was informed that Senior Residents are being generally appointed from amongst eligible candidates on the basis of walk-in-interview. It is in this background now that the dispute in issue shall be decided by this Court. 9. At the very outset, the Court would like to observe that it is not going to give any adjudication upon the validity of the policy of the State with regard to appointment of Senior Residents in the Government owned Medical Colleges of the State of Himachal Pradesh, because in my considered view, that is primarily not the subject matter of this lis. I say so for the reason that claim of the petitioner is not that he has a right to be appointed as a Senior Resident without complying with the condition of serving in peripheral institutions for two years. I say so for the reason that claim of the petitioner is not that he has a right to be appointed as a Senior Resident without complying with the condition of serving in peripheral institutions for two years. The simple contention of the petitioner is that once may be fortuitously, the petitioner has been called upon to perform the duties of a Senior Resident, then, after completion of three years, can the College in issue refuse experience certificate to this effect to the petitioner? 10. The eligibility criteria for being appointed as a Senior Resident is Post Graduation in the concerned Specialty and further in case, the prospective applicant happens to be a candidate who has done his Post Graduation as an in-service candidate, then, such a candidate should have had put in two years service in peripheral institutions after completing his Post Graduation. These are admitted facts. The above facts clearly contemplate and stipulate that the educational qualification required for being appointed as a Senior Resident is Post Graduation in the concerned Specialty. Two years service in peripheral institutions, by no stretch of imagination, can be said to be a "Educational Qualification" and this is only an eligibility condition, which a candidate who has done his Post Graduation as an in-service candidate or G.D.O., has to fulfill for being appointed as a Senior Resident. 11. Coming to the facts of this case, after the petitioner completed his Post Graduation in the year 2015 as an in-service candidate, the Government in its wisdom, may be on the request of the petitioner, transferred/posted him vide Annexure A-1 at Kamla Nehru Hospital, Shimla. Vide Annexure A-2, Office Order dated 10.8.2015, after the petitioner had reported for duty at Kamla Nehru Hospital, Shimla, he was directed to report for duty to the Professor and HOD, OBG, KNSHM&C Shimla, with immediate effect till further orders. Annexure A-3 (Colly.) is the duty roster of Senior Residents in respect of Obstetrics & Gynecology Department of the said hospital and the name of the petitioner figures in all the duty rosters, which so stand issued of Senior Residents. In other words, Annexure A-3 demonstrates that while posted at Kamla Nehru Hospital, Shimla, the petitioner was called upon to and he performed the duties of a Senior Resident. This incidentally is not in dispute. In other words, Annexure A-3 demonstrates that while posted at Kamla Nehru Hospital, Shimla, the petitioner was called upon to and he performed the duties of a Senior Resident. This incidentally is not in dispute. That being so, in my considered view, in the peculiar facts of this case, the act of the respondents-State of not issuing experience certificate to the petitioner of having served as a Senior Resident in Kamla Nehru Hospital, Shimla, is not sustainable in law. This I say so for the reason that it was the respondent-State itself which posted the petitioner at Kamla Nehru Hospital, Shimla, and thereafter, called upon him to perform the duties of a Senior Resident. It is not the case of the State that the petitioner was disqualified to be appointed as a Senior Resident as he was not possessing the requisite educational qualifications. As per respondent-Department, the only ineligibility from which the petitioner suffered from being appointed as a Senior Resident, was that he had not served in peripheral institutions after doing his Post Graduation as an in-service candidate/GDO. In my considered view, once the State transferred and posted the petitioner at Kamla Nehru Hospital, Shimla, vide Annexure A-1 and thereafter called upon him to perform the duties of a Senior Resident, it waived of the condition of serving in peripheral institutions for being appointed as a Senior Resident. This Court is not oblivious to the fact that in the transfer order, it is not mentioned that the petitioner was transfered to Kamla Nehru Hospital, Shimla, as a Senior Resident, but, the fact of the matter remains that while serving at Kamla Nehru Hospital, Shimla, the petitioner was called upon by the State to perform the duty of a Senior Resident as he was educationally qualified to do so. In this background, the respondent-State can not deny grant of experience certificate to the petitioner for the period he was called upon to perform the duties of a Senior Resident at Kamla Nehru Hospital, Shimla and they are accordingly directed to issue experience certificate as a Senior Resident to the petitioner in this regard forthwith for the period he remained posted in Kamla Nehru Hospital, Shimla. 12. 12. This Court would like to add at this stage that when the Government itself has formulated a policy that no person shall be appointed as a Senior Resident in Government Medical Colleges of the State until and unless such an incumbent has put in two years service in peripheral institutions if he happens to be a Post Graduate as an in-service candidate/GDO, then, onus is upon the Government to ensure that no Medical Officer is appointed in a Government Medical College of the State in the garb of transfer. The onus is squarely upon the Government to religiously follow its policy with regard to appointment of Senior Residents. If Government flouts its own policy and allows Medical Officers to be posted in Medical Colleges who have not put in requisite peripheral service after doing Post Graduation as in-service candidates and then they are asked to perform the duties of a Senior Resident, then, the Government cannot take the benefit of its own wrong and deny teaching experience to them. With these observations, the writ petition stands disposed of. Pending miscellaneous application(s), if any, also stand disposed of.