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Judgment
Ajay Mohan Goel, J
By way of this petition, the petitioners before this Court have prayed for the following reliefs:-
“(a) to issue a writ of certiorari or direction in nature thereof, quashing the impugned order dated 28.01.2019 (Annexure P-3) and dated 19.04.2021 (Annexure P-4) of the writ petition, as unconstitutional and illegal and contrary to the law so far as it deprives the petitioners from the raised incentive of Rs.30,000/- as well as 5% quota on account of being posted in hospitals situated in rural areas;
(b) to issue a writ of mandamus, appropriate writ, order or direction in nature thereof, directing the respondent department to pay raised incentive of Rs.30,000/- with arrears thereof alongwith interest thereon @ 18% pa and also the benefit of 5% quota to the petitioners for serving in hospitals situated in rural areas with all consequential benefits for all purposes and intents.”
The case of the petitioners is that they are qualified MBBS doctors who were appointed by the respondent-Department on various dates on contract basis. All the petitioners at the time of filing of the petition were working in different CHCs/PHCs located under Rampur Medical Block since the year 2015. All the CHCs and PHCs are located in rural areas. Before reorganization of Rampur Block, all the CHCs and PHCs formed part of Medical Block, Nankhari. However, in terms of Annexure P-1, dated 09.12.2013, the Government decided to open a new Medical Block at Rampur and the following CHCs and PHCs were shifted from Medical Block, Nankhari to the newly created Medical Block, Rampur, Bahali, Deothi, Dhargaura, Ghanvi, Gopalpur, Jeori, Jhakri, Khaneri, Lalsa, Phancha, Samej and Taklech.
According to the petitioners, vide Notification dated 21.07.2012, the respondent-Department revised the incentives of the Medical Officers RKS & Contract including Ayurveda, which included monthly incentive of Rs.10,000/- with mandatory stay of three years for the area/Development Blocks at Matiana, Kumarsain, Jubbal-Kotkhai, Rohru/Tikker, Nankhari and Karsog. These incentives were to be paid out of NRHM funds and were to be over the contractual salary already being paid. The incentive was increased from time to time and on 08.04.2013, for Medical Block, Nankhari in was increased to Rs.20,000/-, followed by another increase vide Annexure P-3, dated 28.01.2019 to Rs.30,000/-. However, the hospitals where the petitioners are posted were kept out of the purview of Notification Annexure P-3. Thereafter, again revised proceedings were held on 19.04.2021 (Annexure P-4) and the petitioners have been deprived the benefit of 5% quota for doing PG Courses by bringing their hospitals under Rampur Block. Feeling aggrieved, the petitioners made representations to the Department for conferring benefit upon them as was being conferred to the doctors serving in CHCs and PHCs under Medical Block, Nankhari and also the benefit of Annexure P-4, but as nothing happened, hence, the petition.
Learned counsel for the petitioners has submitted that at one point of time, the Institutions where the petitioners were serving were under Medical Block, Nankhari and had the Institutions not been made part of the newly carved Medical Block, Rampur, they would have had got the benefits of the Notifications referred to in the petition. He submitted that denial of the benefit akin to those serving in the Medical Block, Nankhari to the petitioners is not sustainable in the eyes of law, because in terms of Annexure P-9, the State Government itself has identified the areas falling in Rampur Sub-Division to be difficult area and Sub-Cadre area and these are the places where the petitioners are presently posted. Accordingly, learned counsel argued that the petition be allowed in terms of the prayer made in the petition.
The petition is opposed by the State. The stand of the Department is that new Medical Block, Rampur was created in the year 2013 and the petitioners have been appointed in the Health Department after the opening of Medical Block, Rampur in the year 2013. None of them were serving under Medical Block, Nankhari prior to their appointment. As per the Department, as the petitioners were appointed in various Government Health Institutions falling under Medical Block, Rampur after the year 2013 and as they are being provided all the benefits and incentives as are admissible to the doctors who are appointed in Government Medical Block, Rampur, therefore, there is no merit in the prayer of the petitioners. There is no infringement of their legally enforceable rights and the petitioners cannot be termed to be aggrieved party. As per the Department, the petitioners cannot raise the plea of getting advantage of the respective areas because earlier they were Nankhari Medical Block in view of the fact that in the year 2013 a full fledged Independent Block, Rampur was made functional by the Department. State thus prayed for dismissal of the petition.
When this case was listed on 02.03.2022, the following order was passed:-
“ The controversy involved in this petition is in a very narrow compass. The petitioners are serving as medical officers having been appointed on contract basis from the year 2016 onwards. They are stated to be serving in the medical institutions which are situated in Medical Block Rampur. According to the petitioners, the State of Himachal Pradesh vide Annexure P-9, i.e. Notification dated 03.10.2016, has reformulated difficult areas sub-cadre in the State, in terms whereof 15/20, 18/20, 20/20 areas of Rampur Sub-division stand defined as difficult sub-cadre areas. However, despite this, petitioners are being discriminated vis-a-vis medical officers who are posted in the Health Institutions in Nankhari Block in terms of Annexure P-3 with regard to the incentives which are being given to the contract medical officers, as much as medical officers appointed in the Health Institutions in Nankhari Block are being given monthly incentive as enhanced vide Annexure P-3 to the sum of Rs.30,000/- per month, whereas the petitioners are being given the enhanced monthly incentive of Rs.20,000/- only.
Learned counsel for the petitioners has argued that the discrimination which is being made by the department concerned with regard to payment of the enhanced monthly incentive to the medical officers, who are serving in the Health Institutions, situated in Medical Block Rampur and Development Block Nankhari, is highly discriminatory and not sustainable in the eyes of law, for the reason that when the government treats the areas where the petitioners are serving to the difficult areas/sub-cadre areas, then the petitioners cannot be discriminated for the purpose of payment of monthly incentive vis-a-vis the doctors serving in Development Block, Nankhari.
Learned Senior Additional Advocate General has argued that the bifurcation on the basis of development block is a policy decision which has been taken by the government, taking into consideration the location of the Health Institutions and it is not as if an artificial discrimination is being made between the petitioners vis-a-vis the medical officers serving in Nankhari Block. He submits that it is a rational call which has been taken by the government. He further submits that otherwise also the petitioners do not have any locus to raise any grievance for the reason that it is not as if new blocks have been carved out after the petitioners were appointed as medical officers and the petitioner being aware as to in which particular medical block they were being posted, elected to join without any objection and this estopes the petitioners from raising the cause which is being agitated by way of this petition.
Having heard respective contentions of learned counsel for the parties, before the matter is heard any further, this Court is of the view that it will be in the interest of justice in case an affidavit is filed by Principal Secretary (Health) to the Government of Himachal Pradesh, spelling out as to what differentiates a medical officer serving in an area which is declared as a difficult area/sub-cadre area by the government vis-a-vis doctors serving in Nankhari Block.
Let, the needful be positively done within three weeks, as prayed for. List on 30.03.2022.”
In response thereto, affidavit was filed by Secretary (Health) to the Government of Himachal Pradesh, dated 29.03.2022, and it was mentioned therein that to address the shortage of human resources, the State in initiated systematic and integrated policy changes with relation to recruitment, placement and human resource development for ensuring availability of doctors in high focus districts and difficult areas. Some of the key strategies adopted for ensuring availability of medical officers in rural and remote areas was (a) eligibility for Post Graduation, (b) differential pay structure and (c) provision of incentives for rural areas. Different regions of the State have been classified into rural, difficult and most difficult areas as under:-
Rural Areas Difficult Areas Most Difficult Areas Within the limits ofKinnaur DistrictPangi Sub Division, Shimla Municipal;(except Pooh andLahaul & Spiti within the limits ofHangrang Sub Tehsil);District; Pooh area of Solan MunicipalBharmour SubKinnaur District (Pooh Committee and withinDivision of Chamba,& Hangrang Baddi Barotiwala-Develop0ment B lockTehsil/Sub Tehsil):
Nalagarh notified area.of Chopal, ChoharaDodra Kawar area of (excluding DodraShimla District. Kanwar) Sangrah, Seraj, Anni, tissa, Chhota Bhangal of Multan Tehsil and Bara Bhangal Area (Baijnath Block); Development Blocks (Shillai, Jubbal- Kotkhai, Salooni, Rhoru, Nankhari, Karsog).
New Medical Block at Rampur was ordered to be opened in the year 2013 and appointments of the petitioners were made thereafter. As they were appointed after the opening of Medical Block, Rampur, they have no legal right to claim the benefits in terms of the prayer made in the petition. However, it was also mentioned in the affidavit that in view of the observations made by the Court in its order, the matter may be re-examined in consideration with the Advisory Department as well as with the Government of India, if so required and directed.
Thereafter, when the case was listed on 30.03.2022 before the Court, the following order was passed:-
“The Court stands informed that in compliance to order dated 02.03.2022, an affidavit has been filed by Secretary (Health) to the Government of Himachal Pradesh. Registry is directed to place the same on record, if in order. The Court has perused the copy of the said affidavit which has been provided by the learned Additional Advocate General, Paras-4 and 5 of which reads as under:-
That it is submitted that the new Medical Block at Rampur was ordered to be opened way back in the year 2013 itself vide Government notification dated 09.12.2013, (Annexure P-1), i.e. much before the appointment of the present petitioners in the respondent department. The petitioners who are the appointees in the Health Department much after the opening of Medical Block Rampur in the year 2013, had/have no legal cause of action to claim for any benefit on the ground only that the concerned institutions did earlier fall in the different Medical Block Nankhari prior to their appointments.
That it is respectfully and humbly submitted that keeping in view the observations made by this Hon’ble Court, the matter may be reexamined in consideration with the Advisory Departments as well as with the Government of India, if so required and directed in the matter.
Learned counsel for the petitioner urges that in view of the stand which has been taken by the State in Paras-4 and 5 of the affidavit, it will be in the interest of justice, in case, the State is directed to take an appropriate decision in the matter within some time bound period and report of the same be submitted to the Court. Learned Additional Advocate General submits that at least four weeks time be granted to do the needful. Ordered accordingly.
Let, an appropriate decision, in terms what is contained in Paras-4 and 5 of the affidavit be taken within four weeks and the same be communicated to the Court on the next date of hearing.
List on 09.05.2022.”
This was followed by a fresh response being filed by respondents No.1 and 2, dated 26.04.2024, alongwith which copy of order dated 17.10.2023 was appended, in terms whereof, it was held that the claim of the petitioner was not covered under Notification dated 28.01.2019.
This Court heard learned counsel for the petitioners as also learned Additional Advocate General.
The issue involved in this petition is as to whether the petitioners are entitled to be treated akin to the medical officers serving in Medical Block, Nankhari, or the respondent-State is justified in not conferring upon them the same benefits as are granted to the medical officers serving in the areas under Medical Block, Nankhari.
Before proceeding further, it is pertinent to mention at this stage is that Medical Block, Rampur was created vide Notification dated 09.12.2013 (Annexure P-1) and the petitioners were appointed in various Medical Institutions in Medical Block, Rampur thereafter from the year 2016 onward. In other words, Medical Block, Rampur was already in existence when the petitioners were appointed and none of the petitioners was appointed before the opening of New Medical Block at Rampur. In terms of Annexure P-3, which is Notification/ Office Order dated 28.01.2019, the Health and Family Welfare Department has enhanced the monthly incentives to the medical officers and contract MBBS and specialists inter alia serving in Nankhari, Matiana, Kotkhai and Kumarsain Blocks of district Shimla as mentioned therein. In terms of Annexure P-4, the incentives of serving in the areas mentioned therein stand granted for admission to Post Graduate Course. As per Annexure P-9, which is communication dated 03.10.2016, 15/20, 18/20, 12/20 of Rampur Sub-Division including Kuki, Darkali, Munish Kashapart Panchayats in district Shimla have been declared as difficult areas, sub-cadre areas.
It has not been disputed in the course of arguments that Rampur Medical Block includes the areas which were earlier included in Medical Block, Nankhari. The grievance of the petitioners is that there is no rational in discriminating the petitioners who are serving under Rampur Block vis-a-vis doctors who are serving in Nankhari Block, for the reason that even the areas where the petitioners are serving in Rampur Block are rural areas, backward areas, difficult areas and sub-cadre areas in terms of the Notification issued by the Government of Himachal Pradesh, Department of Personal, dated 03.10.2016 (Annexure P-9).
Incidently, despite detailed orders passed by this Court calling upon respondent-Department to explain the rational behind the discrimination, not even a whisper is there in the affidavit/responses filed thereafter on behalf of the Department. The only justification that has been given is that because the petitioners were appointed after the formation of Rampur Medical Block, therefore, they are not entitled to the benefits being paid by them. Though, this Court is not oblivious to the fact that the petitioners were appointed after formation of the Rampur Block, but then this Court cannot ignore the fact that in terms of Notification dated 03.10.2016 (Annexure P-9), certain areas of Rampur Sub-Division stand declared as difficult areas, sub-cadre areas. If that is so and if the rational in giving incentives to the doctors serving in the blocks like Nankhari is to augment the availability of the medical officers in hard and remote areas, then it is not understood as to on the same logic why the incentive of serving in difficult and sub-cadre areas is not being extended to the petitioners. If an area even as per the Department of Personal happens to be a difficult area or a sub-cadre area, then irrespective of the medical block where it is situated the incentive of the medical officers serving in such like area, as is being given to a medical officer in other medical blocks, has to be extended to such like candidates. The discrimination between the medical officer serving in difficult are/sub-cadre area simply on the ground that the medical block in which he or she is serving is not covered under the Notification in fact violates Article 14 of the Constitution of India, for the reason that similarly situated persons cannot be treated with different yardstick. In fact, the classification that has been created between a doctor serving in Rampur Medical Block and Nankhari Medical Block is not based on any intelligible differentia, for the reason that if incentive is being given to a doctor for serving in difficult areas or sub-cadre areas that fall in Nankhari Medical Block, then similar benefit has to be extended to the doctors serving in difficult and sub-cadre areas as stand identified by the State itself falling in Rampur Medical Block also.
Therefore, this Writ petition is allowed by holding that the act of the respondent-Department of discriminating the petitioners vis-a-vis the medical officers posted in Medical Block, Nankhari as far as the benefit of Annexure P-3 is concerned, is bad in law and it is directed that the benefit of Annexure P-3 be extended to the petitioners from due date, i.e. the date of issuance of Notification Annexure P-3, provided the place of posting of the petitioners falls either in the definition of difficult or sub-cadre area as stands identified vide Annexure P-9, dated 03.10.2016. As far as the other relief relating to Annexure P-4 is concerned, benefit thereof shall be as per the latest Policy of the State in this regard.
The petition stands disposed of. Pending miscellaneous applications, if any, also stand disposed of.