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Judgment
Sandeep Sharma, J
Since in all the above captioned petitions questions of facts and law are common, same were heard together and are being disposed of by this
common judgment.
Precisely, the challenge in the instant petition has been laid to condition of mandatory period of service as provided under Clauses 6.1 and 11.1.2 of
“the Post-Graduation/Super Specialty Policy for Regulating Admission to various Post Graduation and Super Specialty Courses in Medical
Education Applicable in the State of Himachal Pradesh†(for short, ‘Policy’), formulated by the respondent-State, whereby it has been
provided that the General Duty Officers (for short, ‘GDOs’), seeking sponsorship, besides being in regular service of the State should have
completed mandatory period of service of 4/5 years in the State after post-graduation (for short, ‘PG’), if the candidate had pursued PG as a
sponsored candidate.
For having bird’s eye view of the matter, certain undisputed facts, which may be relevant for the adjudication of the case are that at present
there are seven Government Medical Colleges and one private medical college in the State, which impart medical education. Two medical colleges i.e.
Indira Gandhi Medical College and Hospital (for short, ‘IGMC’) and Dr. Rajendra Prasad Government Medical College and Hospital, Tanda
(for short, ‘RPGMC’) being well established and old medical colleges have sufficient provision and infrastructure to provide PG degrees and
super-specialty courses in certain disciplines, whereas, remaining five medical colleges are at the stage of infancy and as such, do not have the
requisite infrastructure and faculty to provide an opportunity to the medical graduates to improve their qualifications by doing PG and super-specialty
courses. Since, in two well established government medical colleges at Shimla and Tanda PG courses as well as super-specialty courses in all
disciplines of medical sciences are not available, State of Himachal Pradesh, with a view to train/impart higher education to its in-service candidates
formulated/notified a policy for sponsoring GDOs for doing PG/MS degree/diploma in masters courses from the Colleges/Institutions outside the State,
vide Notification dated 3.10.2017 (Annexure P-2 of CWP no. 2176 of 2021, titled Manoj Sharma vs. Sate of Himachal Pradesh and others), which is
reproduced as under:
“Government of Himachal Pradesh
Department of Medical Education
File No: HFW-B(F)4-9/2017 dated: Shimla the 03/10/2017
Notification
In continuation of this Department’s Notification No.: HFW-B(B(14-3/2009-Loose dated 20.03.2017 the Governor, Himachal Pradesh is pleased
to notify a policy for sponsoring General Duty Officers for doing PG(MD/MS) Degree/Diploma & Master Courses outside the State as per the
ANNEXURE â€"‘A’.
The Governor, Himachal Pradesh in suppression of all previous Policies notified for sponsoring GDOs for doing Super specialty DM/MCh Courses,
DNB Courses within and outside the State is pleased to notify a fresh policy in this behalf as per the ANNEXURE-‘B’ and ANNEXURE-
‘C’.
By order,
(Onkar C. Sharma)
Principal Secretary (Health) to the
Government of Himachal Pradesh
Endst. No.: As above dated: Shimla-2, the 03/10/2017
Copy forwarded for information and necessary action to:-
The Special Secretary (GAD) to the Government of Himachal Pradesh w.r.t. item No.-156, Cabinet meeting dated 18.09.2017.
The Deputy Secretary (Health) to the Government of Himachal Pradesh.
The Director Health Services, Himachal Pradesh, Shimla-9.
Director, Medical Education and Research, Himachal Pradesh, Shimla-9.
Director, Dental Health Services, Himachal Pradesh, Shimla-9.
The Principal, IGMC, Shimla, Himachal Pradesh
The Principal, Dr. RPGMC, Kangra at Tanda, Himachal Pradesh
The Principal, Dr. YSPGMC, Sirmour at Nahan, Himachal Pradesh
The Principal, Pt. JLNGMC, Chamba, Himachal Pradesh
The Principal, Sh. LBSGMC, Ner Chowk, Mandi, Himachal Pradesh
The Principal, HP Government Dental College, Shimla-1.
File No.:HFW-B(B)14-3/2009-Loose w.r.t. this Department’s Notification dated 20.03.2017. The original file number of this Notification is
HFW-B(B)12-4/2013-I(Loose).
Guard File.
(Pankaj Rai)
Special Secretary (Health) to the
Government of Himachal Pradesh
ANNEXURE-‘A’
POLICY FOR PURSUING PST GRADUATE (MD/MS) DEGREE/DIPLOMA AND MASTER COURSES OUTSIDE THE STATE;-
(A) SPONSORED SEATS:
ELIGIBILITY AND SELECTION CRITERIA IN RESPECT OF GDOs-
1.1 The GDOs shall be entitled for grant of ‘No Objection Certificate’ for pursuing PG degree/PG diploma course on completion of three years
regular/contract service in the State. The period of three years shall be reckoned from the date of actual joining on the post upto the date of issuing of
NOC.
1.2 In case, the GDO seeks NOC for the course from the Government/private institute duly recognized by MCI, outside the State, the same shall be
issued as per the requirement of the Prospectus of that institution subject to the condition that NOC will not be given before three years of service
notwithstanding the requirement of lesser service in the Prospectus.
FOR FIRST PG COURSE
The GDOs who have been issued NOC, on their selection for their first course shall be governed with the following conditions:-
2.1 The regular GDOs shall be treated on duty for the actual duration of their respective course and shall be paid their full pay and allowances. 3(b)
2.2 The contractual GDOs shall be treated on duty for the actual duration of their respective course and shall be paid their contractual emoluments,
without any incentives.
FOR SECOND PG COURSE:-
The GDOs who have been issued NOC, on their selection for their second course shall be governed with the following conditions:
3.1 The GDOs who have completed PG Degree in one specialty will not be granted NOC for PG Degree in other specialty unless he/she has served
the State for at least five years after completion of the flrst PG Degree.
3.2 The GDOs who have completed PG Diploma in one specialty will not be granted NOC for PG Diploma in other specialty unless he/she has served
the State for at least three years after completion of first PG Diploma.
3.3 The GDOs who have completed PG Diploma in one specialty will not be granted NOC for PG Degree in same or any other specialty unless
he/she has served the State, at least for a period of three years after completion of first PG Diploma.
3.4 The GDOs who have completed DNB in one specialty will not be granted NOC for PG Degree in same or any other specialty unless he/she has
servecl the State, at least for a period of five years after completion of DNB Course.
3.5 GDOs for their second PG Course, will have to avail study leave or the leave of kind due and admissible, as the case may.be, and will be entitled
for leave salary.
REQUIREMENT OF BOND BY WAY OF BANK GUARANTEE:-
4.1The GDOs (regular/contract) shall have to furnish a bond to serve the State at least for five years (in case of PG Degree course) and atleast for
three years (in case of PG Diploma course) after completion of their respective courses. The Bond shall be in the form of Bank guarantee of Rs.10
Lakhs for PG degree and 7 Lakhs for PG diploma to be executed prior to joining the said course and no one shall be relieved to join the course without
execution of the bond.
4.2 In case the GDO is selected for doing second PG course shall have to again furnish a bond to serve the State similar to 4.1 above.
4.3 In case the GDO is selected for doing second PG course during the bonded period of service, he/she shall have to serve the balance period of
earlier bonded service in addition to the bonded service of second PG course as the duration of second PG course shall be excluded from the bonded
period of service.
4.4 In the event of the GDOs rescinding on the terms of the bond, the State Government shall have the right to forfeit the amount of Bank Guarantee
with a simultaneous request for cancellation of registration of their Degree course to be made to the MCI.
FOR GDOs LEAVING COURSE MIDWAY:-
5.1 The GDOs who after being granted NOC as a sponsored candidate leave the PG degree/diploma course midway shall stand debarred to re-
appear as a sponsored candidate in the PG degree/diploma entrance.
5.2 The period of five years for the purpose of de-barring shall be reckoned from the date of leaving the course midway.
5.3 (i) In case, the GDO who has been sponsored and treated as on duty (with full pay and allowances), leaves the course midway, the period
involved shall be converted into/debited from regular leave standing at his credit on the date on which he proceeded to "" join such course. In case of
shortfall of leave, the recovery of amount of pay and allowances falling short of leave will be made/deducted from the salary of such GDO.
5.4 (ii) In case, the GDO who has been granted study leave, leaves the course midway, the study leave availed by him/her shall be converted into
regular leave standing at his credit on the date on which the study leave commenced. The recovery of amount of leave salary, falling short of leave,
will be recovered from the salary of GDO concerned.
6.
6.1 In respect of Master in Public Health(MPH), or any other Master Course, if the institution and course is not recognized by the MCI, but the
course to which NOC is sought, is found necessary for the Sate Health Services in larger public interest, the NOC shall be issued subject to fulfilling
the minimum requirement of mandatory service of three years on regular/contract basis in the State.
6.2 The GDOs (regular/contract) doing Master Courses shall have to furnish a bond to serve the State at least for three years after completion of their
respective courses. The Bond shall be in the form of bank guarantee of Rs.7 Lakhs, to be executed prior to joining ' the said course and no one shall
be relieved to join the course without execution of the bond.
6.3 In the event of the GDOs rescinding on the terms of the bond, the State Movement shall have the right to forfeit the amount of bank guarantee
with a simultaneous request for cancellation of registration of their Degree Course to be made to the MCI.
6.4 In case of another Master Course or PG Degree after the first Master Course, the conditions specified at Sr. N0. 4 with all its sub-clauses above
for the second PG Course shall prevail.
(B) UNSPONSORED SEATS:
The GDO working on contract basis shall have to resign on their selection against direct/open seats before joining such courses.
In case, a regular GDO wisheq to do a PG Degree/Diploma outside the State as a direct candidate, he/she will be granted leave of the kind due and
admissible. The period not covered by any kind of leave shall be treated as dies-non without any interruption.â€
ANNEXURE-‘B’
POLICY FOR PURSUING SUPER SPECIALTY DM/MCH COURSES WITHIN AND OUTSIDE THE STATE
A. SPONSORED SEATS
Allocation of seats (for courses within the State only)
1.1 50% of such seats shall be filled up from amongst the bonafide Himachali Candidates (including in service GDOs as well as direct candidates) and
remaining 50% shall be filled up from open competition. All the seats will be filled up on merit.
Note:- In case, if seat(s) falling in the share of any of the group remained unfilled, the same shall be filled in from the eligible candidates of another
group and vice versa.
1.2 All regular GDOs serving with the Government of Himachal Pradesh would be eligible for grant of No Objection certificate, subject to fulfilling the
eligibility conditions as laid down in para 2 and on selection, would be eligible to join such courses.
2 ELIGIBILITY
All GDOs who have done Post Graduation during service shall be eligible for pursuing DM/Mch courses without any condition of serving the State
after Post Graduation. However, GDOs who join HP Health Services directly after completion of Postgraduate Degree course will have to serve the
State for a period of atleast Two years, for becoming eligible for DM/MCh Super Specialty courses as a sponsored candidate.
3 FOR FIRST DM/MCh COURSE
The GDOs who have been issued NOC, on their selection for their first course shall be treated on duty for the actual duration of their respective
course and shall be paid their fuIl pay and allowances.
4 REQUIREMENT OF BOND BY WIAY OF BANK GUARANTEE
4.1 As the State Government incurs substantive expenditure on each GDO doing DM/ MCh Super Specialty Course and also pays full pay and
allowances during the course, there will be a bond condition to serve the state at least for seven years after doing DM/ MCh Super Specialty Course.
The Bond shall be in the form of bank guarantee of Rs. 15 lakhs to be executed prior to joining the said course and no one shall be relieved without
execution of the bond.
4.2 In the event of the GDOs rescinding on the terms of the bond, the State Government shall have the right to forfeit the amount of bank guarantee.
Simultaneously, request for cancellation of registration of their DM/ MCh Super Specialty Course shall be made to MCI.
4.3 In case the GDO is selected for doing DM/MCh course during the bonded period of service, he/she shall have to serve the balance period of
earlier bonded service in addition to the bonded service of DM/MCh course as the duration of DM/MCh course shall be excluded from the bonded
period of service.
5 FOR LEAVING THE COURSE MIDWAY
5.1 The GDOs who leave the DM/ MCh Super Specialty Course midway either within the State or outside the State of HP, shall stand debarred to re-
appear as a sponsored candidate for pursuing DM/ MCh Super Specialty Course for next five years, for both within the State and outside the State of
Hp.
5.2 The period of five years for the purpose of de-barring shall be reckoned from the date of leaving the course midway.
5.3 In case, the GDO who has been sponsored and treated as on duty (with full pay and allowances), leaves the course midway, the period involved
shall be converted into/debited from regular leave standing at his credit on the date on which he proceeded to join such course. In case of shortfall of
leave, the recovery of amount of pay and allowances falling short of leave will be made.
6 UNSPONSORED SEATS:
In case, a regular GDO wishes to do a DM/MCh course as a direct candidate, he/she will be granted leave of kind due and admissible.â€
As per aforesaid policy, a GDO after having completed 3 years regular/contract service with the State could apply for no objection certificate from
the State of Himachal Pradesh for pursuing PG diploma/degree courses from the government /private medical institutions duly recognized by the
Medical Council of India (for short, ‘MCI’) outside the State and GDO while pursuing course after No Objection Certificate (for short,
‘NOC’) was treated on duty for actual duration of his/her course and he was to be paid full allowances/salary for that period. However, if
aforesaid candidate after having finished his/her first PG intended to pursue second PG course, he/she was required to serve the State for atleast 5
years after completion of first PG degree. GDO who completed PG diploma in one specialty could not be granted NOC for another PG course, unless
he/she serves the State for 3 years, after first PG diploma. In terms of aforesaid policy, GDO (regular/contract) was required to furnish bond for 5
years in case of PG degree course and at least 3 years in case of PG diploma course after completion of respective courses. Bond was to be in the
form of bank guarantee of Rs.10.00 Lakh for PG degree and Rs.7.00 Lakh for PG diploma, which was to be executed prior to joining said course and
no person could be allowed to join the course without execution of bond as mentioned above.
Similarly as per 2017 Policy, as has been taken note herein above, GDO serving with Government of Himachal Pradesh after having done his first
PG course, could apply for NOC for pursuing super-specialty /DM/MCH courses within and outside the State subject to fulfilling eligibility criteria as
per para 2 of eligibility criteria for selection. As per eligibility condition (Annexure B as reproduced herein above), all GDOs who have done Post
Graduation during service shall be eligible for pursuing DM/Mch courses without any condition of serving the State after Post Graduation. However,
GDOs who join HP Health Services directly after completion of PG Degree course were required to serve the State for a period of atleast two years,
for becoming eligible for DM/MCh Super Specialty courses as a sponsored candidate. The GDOs who were issued NOC, on their selection for their
first course were treated on duty for the actual duration of their respective course and were entitled to be paid their full pay and allowances.
However, before availing aforesaid incentive, they were to furnish a bond in form of bank guarantee in the sum of Rs.15,00,000 after completion of
course undertaking therein that they would serve the State for at least seven years. Clause 4.3 of aforesaid policy contained in Annexure B, provided
that the GDO selected for doing DM/MCh course during the bonded period of service, is required to serve the balance period of earlier bonded
service in addition to the bonded service of DM/MCh course as the duration of DM/MCh course shall be excluded from the bonded period of service.
Aforesaid 2017 Policy, circulated by the State of Himachal Pradesh for sponsoring GDOs for doing PG(MD/MS) Degree/Diploma & Master
Courses outside the State came to be superseded by a new Notification dated 27.2.2019, (Annexure P-3), which is also reproduced as under:
“Government of Himachal Pradesh
Department of Health & Family Welfare
File No. HFW-B(F)4-9/2017-II dated: Shimla-2, the 27/02/2019 In supersession of all previous notifications issued in this regard, the Governor of
Himachal Pradesh is pleased to notify PG/Super specialty Policy for regulating admissions to various Post Graduation and Super Specialty Courses in
Medical Education applicable in the State of Himachal Pradesh as under:â€
Short Title.â€"This policy may be called the ‘Policy for regulating admissions to various Post Graduation and Super Specialty courses in
Medical Education applicable in the State of Himachal Pradesh’ in short ‘PG/Super Specialty Policy’.
Commencement.â€"The policy shall come into effect from the date of notification.
Definition.â€
Notwithstanding anything to the contraryâ€
3.1.1 ‘Autonomous Institutions’ shall mean AIIMS Delhi, PGIMER Chandigarh and JIPMER Puducherry to which admissions in Post
Graduation are made on the basis of separate entrance examination and not NEET-PG.
3.1.2 ‘Direct candidate’ shall mean the doctor who is not claiming service benefits/ incentive benefit for pursuing Post Graduation in the State
through NEET-PG and shall include candidates of State Quota (Non-GDOs)/ All India Quota.
3.1.3 ‘Director, Dental Health Services’ in short DDHS shall mean the Director, Dental Health Services, Himachal Pradesh.
3.1.4 ‘Director, Health Services’ in short DHS shall mean the Director, Health Services, Himachal Pradesh.
3.1.5 ‘Director, Medical Education & Research’ in short DME shall mean the Director, Medical Education & Research, Himachal Pradesh.
3.1.6 ‘Field posting’ shall mean the posting in various peripheral Health Institutions of the State including Primary Health Centre, Community
Health Centre, Civil Hospitals, District Hospitals, Zonal Hospitals and Regional Hospitals. Teaching posts in Government Medical/Dental Colleges of
the State shall be excluded from the definition of field posting but shall include the posts of Casualty Medical Officers and Medical Superintendents.
3.1.7 ‘General Duty Officer’, in short GDO shall mean the doctors under the establishment of the Director, Health Services, Himachal Pradesh
and shall include the doctor appointed on regular/contract basis.
3.1.8 ‘Government’ shall mean the Government of Himachal Pradesh.
3.1.9 ‘Incentive Certificate’ shall mean the certificate which shall be issued by the Chief Medical Officer and countersigned by the DHS and
which shall certify the actual period served by the GDO in a particular field posting and shall be required for calculation of incentive for serving in field
postings for the purpose of drawing up of State Quota Merit list.
3.1.10 ‘Medical Faculty’ shall mean the doctors under the establishment of DME working as regular Assistant Professor and above in the
various Government Medical/Dental Colleges of the State.
3.1.11 ‘No Objection Certificate’ in short NOC shall mean the No Objection Certificate issued by the Director, Health Services, Himachal
Pradesh to pursue Post Graduation and Super specialty course as may be applicable.
3.1.12 ‘Post Graduation’ shall mean the Post Graduate MD/MS/MDS/MHA/MPH/ DNB/Diploma courses or any such equivalent courses.
3.1.13 ‘Sponsorship’ shall mean the payment of emoluments/pay/allowances along with due increments (if applicable) during the prescribed
duration of the course of Post Graduation/Super Specialty Courses being pursued by the GDO. For all purposes, in case of a sponsored GDO, his/her
Post Graduation/Super Specialty duration shall be considered on - duty. However, in case a GDO is sponsored, he/she shall not be entitled for drawing
stipend during the course.
3.1.14 ‘Sponsorship Certificate’ shall mean the certificate issued by the DHS after fulfilment of all the bond formalities.
3.1.15 ‘State’ shall mean the State of Himachal Pradesh.
3.1.16 State Quota shall include the seats which are filled up through State counselling and shall include the unfilled seats of All India Quota which
have been reverted to the State.
3.1.17 ‘Super Specialty Courses’ shall mean the courses pursued after Post Graduation and shall include DM/MCh/DNB (Super Specialty) or
any such equivalent courses.
GDO Encadrement.
The cadre of GDOs shall be built up by the following two methods:â€
4.1 Contractual basis:
4.1.1 Campus Interviews shall be conducted in all the Medical Colleges by the DHS for field postings at least 3 months prior to the completion of
internship and posting orders shall be issued to willing candidates before the completion of internship.
4.1.2 Walk-in-interviews shall be held in the office of the DHS as may be decided by the Government from time to time for various field postings.
4.1.3 Those Direct Candidates who serve the state beyond the mandatory period of peripheral service shall continue as GDOs (if willing) and shall be
treated as contractual candidates for all practical purposes.
4.2 Regular basis :
4.2.1 The contractual GDOs may be regularized in accordance with the policy notified by the Government from time to time.
4.2.2 Recruitment may also be conducted through Himachal Pradesh Public Service Commission, Shimla on regular basis as may be decided by the
Government from time to time.
Incentive/NOC/Sponsorship for pursuing Post Graduation:
5.1 Incentive for pursuing Post Graduation within the State through NEET-PG :
5.1.1 There shall be no requirement for a NOC to appear in NEET-PG for any of the GDO candidates.
5.1.2 There shall be requirement of an Incentive Certificate for availing the incentive for serving in the State as a GDO provided that such Incentive
Certificate shall be issued to only those GDO who have completed at least one year of uninterrupted continuous service without any break or
unauthorized absence on the date of declaration of result of NEET-PG. Further provided that this Incentive Certificate shall be valid only for
appearing in the State Quota Counselling.
5.1.3 The application for issuance of Incentive Certificate shall be made by the desirous GDO to the concerned Chief Medical Officer under whom
he/she is currently serving. The application shall be made on a prescribed format which shall be notified by the DHS separately. The concerned Chief
Medical Officer shall verify the service particulars of the GDO from the maintained service record and send the Incentive Certificate for counter
signature of the DHS.
5.1.4 The GDOs shall be entitled for incentive in terms of percentage of marks obtained in NEET-PG based on their services rendered in various field
postings as per ANNEXURE-A. The percentage incentive shall be computed on prorata basis for the actual duration of service rendered in a
particular field posting as per the following formula:
Incentive percentage
           prescribed incentive for for
a particular field = Duration served (in days)
            x particular institution posting
3 6 5
           (Annexure-A)
In case a particular GDO has been posted at one particular station but he is deputed for some period to another station, the actual duration served at a
particular field posting will be taken into account for the calculation of incentive. This incentive shall be available to only those GDOs who are in the
active service of the State in a continuous manner and for the purpose of computing the incentive, the present continuous service shall be taken into
account; meaning thereby, any doctor who has served as a GDO in the past but has subsequently resigned from GDO ship shall not be eligible to avail
benefit of this incentive on the basis of any previous service. Similarly, if he/she subsequently joins GDO ship again, the incentive will be calculated
taking into consideration the latest period of service reckoned from the date when he/she is in continuous service without any break. This incentive will
be subject to maximum of 30% in terms of judgment delivered by the Hon’ble Supreme Court of India on 16th August, 2016 in Civil Appeal No.
8047/2016â€"State of U.P. & Ors. Versus Dr. Dinesh Singh Chauhan and as per Medical Council of India Post Graduate Medical Education
Regulations. 5.1.5 For the purpose of computation of incentive by the DHS, the cut off date shall be the date of declaration of NEET-PG result. 5.1.6
The date schedule for issuance of such Incentive Certificate shall be notified by the DME either as a part of Prospectus or separately.
5.1.7 No application for issuance of Incentive Certificate shall be entertained after the expiry of period mentioned in notification as per clause 5.1.6. If
any GDO fails to make application before the expiry the last date prescribed for the purpose it shall be presumed that he/she is not interested in
availing the benefit of the incentive.
5.1.8 The incentive applicable for each field posting for a particular candidate shall be calculated, summed up and rounded off to three decimal points
by the DHS. The DHS shall compile the list of all candidates who have applied for issuance of Incentive Certificate alongwith their NEET-PG roll
number and communicate the entitled incentive (till three decimal points) in respect of each candidate to the DME for drawing up a combined merit
list in respect of GDO and direct candidates. The individual original Incentive Certificate shall be filed in the personal record of the GDO.
5.1.9 No incentive shall be applicable for those GDOs who are appearing for the All India counseling.
5.2 NOC/Sponsorship for pursuing Post Graduation against sponsored quota seats of autonomous institutions :
5.2.1 NOC shall be issued only to GDOs desirous of pursuing Post Graduation from the autonomous institutions for appearing in their entrance
examination against the sponsored quota of the autonomous institutes subject to the following conditions:â€
(a) GDO should be regular and should have three years of uninterrupted continuous services without any break or unauthorized absence. His/her
service record to this effect should have been verified by the concerned Chief Medical Officer as per maintained service record. Such verification
shall be obtained by the concerned GDO from the Chief Medical Officer before making application to the DHS for NOC for appearing in
examination.
(b) NOC will not be given before three years of service as required at 5.2.1(a) notwithstanding the requirement of lesser service in the prospectus of
any particular autonomous institution.
5.3 Such candidates who have been granted NOC/Sponsorship for appearing in the entrance examination of autonomous institutions subject to
conditions as laid down in 5.2.1 and are subsequently selected in the institutions shall apply to the DHS for relieving along with the result card. The
DHS shall then complete all the formalities as prescribed in clause 6 and shall relieve the candidate only after furnishing of bond documents.
5.4 Sponsorship :
5.4.1 After the counseling, the GDOs desirous of pursing Post Graduation within or outside the State shall apply for sponsorship to the DHS. The pre-
requisites for issuance of sponsorship certificate shall be the following:
5.4.1.1 For Post Graduation within the State : (a) The candidate should have applied and should have been issued Incentive Certificate prior to State
counseling. (b) Fulfilment of all formalities as per clause-6
5.4.1.2 For Post Graduation outside the State through NEET- PG/ unsponsored quota of autonomous institutions:
(a) No GDO shall be sponsored for Post Graduation outside the state through NEET-PG or against non-sponsored quota of autonomous institutions.
(b) Such GDOs who secure admissions in Post Graduation courses outside the State through NEET-PG or against unsponsored quota of autonomous
institutions may avail leave of kind due including Study Leave/ Extra Ordinary Leave, as may be otherwise admissible as per CCS (Leave) Rules.
(c) Such GDOs who secure admissions in Post Graduation courses outside the State through NEET-PG or against unsponsored quota of autonomous
institutions shall apply to the DHS for relieving. If the candidate has sufficient leave of kind due as per clause (b) above, the same may be
recommended to the Government subject to the conditions as per the leave being granted including bond period for Study Leave. If sufficient leave is
not admissible as may be required for duration of the Post Graduation course, the GDO will have to resign if he/she wants to pursue the post
graduation and accordingly his/her case shall be sent to the Government by the DHS alongwith recommendations.
5.5 If any GDO joins Post Graduation within or outside the state through NEET-PG exam/ Autonomous Institution Entrance Examination as a direct
candidate without due resignation/permission, in case of contractual GDO his/her services shall be deemed terminated and recovery shall be made as
per terms of contract agreement and in case of regular GDO candidate, disciplinary proceedings shall be initiated besides writing to the concerned
Head of Institute for cancellation of the admission.
Terms and conditions of Bond for Post Graduation :
6.1 As the Government incurs substantive expenditure on each candidate for doing Post Graduation and also pays them full pay along with all
allowances and seniority during the course, every GDO (regular/contract) who have been sponsored to pursue Post Graduation within the State in
Government Medical/Dental Colleges shall have to furnish a bond to serve the State for at least four years including mandatory first year of field
posting after completion of their respective courses. Similarly, in case of GDOs sponsored for Post Graduation outside the State on sponsored quota
seats of Autonomous Institutions, as the Government pays them full pay alongwith increments during the course and they are not even serving the
state during the course, every such GDO (regular) shall have to furnish a bond to serve the State for at least five years including mandatory first year
of field posting after completion of their respective courses. Since the direct candidate who pursues Post Graduation within the State in Government
Medical/Dental Colleges on State/All India Quota stand on a different footing as they are not entitled to service benefits including full pay (with
allowances and increments) and chances of regularisation to which their GDO counterparts are entitled; however, keeping in view the resources
expended in their education by the government including payment of stipend, every such direct candidate shall have to furnish a bond to serve the
State for at least two years including mandatory first year of field posting after completion of their respective courses.
6.2 The bond as per clause 6.1 shall be in the following form:
6.2.1 All the candidates as per clause 6.1 shall furnish a bond in the form of a legal undertaking to serve the State for prescribed period failing which
the candidate shall have to pay the Rs. 40 Lacs to the State Government. The candidate shall also furnish an undated cheque from a scheduled bank
amounting to Rs. 40 Lacs in the name of DHS. The DHS shall be at liberty to get the cheque encashed in event of violation of the bond conditions.
6.2.2 The candidates as per clause 6.1 shall also deposit their original bachelor degree with the DHS/DDHS (in case of GDOs) and DME (in case of
direct candidates). The concerned issuing University/Institution shall be informed about such retention and the candidate shall be debarred from
obtaining any duplicate degree. The original bachelor degree shall be released only after completion of the Bond Period or after deposition of the
requisite amount and this shall be a part of the bond agreement.
6.2.3 The candidates shall also furnish undertaking as a part of bond that they shall complete the course prescribed failing which they shall be liable to
pay Rs. 10 lakhs to the State government for wastage of seat.
6.2.4 The prescribed format of the bond shall be as per Annexure-B.
6.3 It shall be the sole responsibility of DHS/DDHS to ensure the furnishing of such documents from each GDO candidate who is being sponsored
and the sole responsibility of the Principal of concerned Medical College to ensure collection of these documents at the time of admission of a direct
candidate to the course. Any dereliction of duty in this end shall make the concerned liable for action.
6.4 The custodian of these three documentsâ€"Bond as legal undertaking, undated cheque and the original Bachelor’s Degree shall be
DHS/DDHS (in case of GDOs) and DME (in case of direct candidates through Principals of respective colleges). Two months before the tentative
completion of the Post Graduation in every Medical/Dental College, the DHS/DDHS shall conduct walk in interview in the concerned college and
shall take options from all those candidates who are bonded to serve the State. Simultaneously, the DHS shall take over the custody of the documents
including the Bond agreement, undated cheque and Original Bachelor degree in respect of direct candidates. The field posting orders of such
candidates shall be issued by the DHS/DDHS within a month of declaration of PG results and successful clearing of the PG Exams subject to
vacancy. The concerned Principals shall relieve the candidates (including GDOs and direct candidate) only after successful completion of the course
with the direction to report to the DHS.
6.5 In no case, NOC will be granted for second Post Graduation Course/Super Specialty Course/Senior Residency to any candidate during the
mandatory period of service of the State after first Post Graduation.
6.6 The following shall constitute a violation of the bond to serve the state as outlined in Clause 6.1.
6.6.1 Failure to join the given field posting within 10 days of issuance of orders.
6.6.2 Putting in request for EOL/study leave/request for NOC during the mandatory period of service of the State.
6.6.3 Putting in request for Senior Residency within the mandatory first year of field posting.
6.7 In the event of a candidate violating the terms of bond as outlined in clause 6.6, the following actions shall be initiated by the DHS:
6.7.1 The salary paid to the candidate during sponsorship shall be recovered through due process of law.
6.7.2 The bond amount shall be recovered through due process of law. The cheque submitted by the candidate as a part of bond documents shall be
en-cashed.
6.7.3 Initiation of disciplinary proceedings against the GDO candidate.
6.7.4 The original bachelor degree shall not be returned and endorsement shall be made to the concerned University thereof.
6.7.5 Cancellation of registration from the concerned Medical Council.
6.8 Exceptions.â€"The condition of bond shall not be applicable in case of Direct candidate in the following scenarios:
6.8.1 Those direct candidates who do not choose to take any stipend during the post graduation in the state. Such candidates shall furnish such option
on a prescribed affidavit before the start of course.
6.8.2 Those direct candidate in whose case the Government/DHS/DDHS fails to issue any orders for field postings within a month of their clearing
the PG Exams. However, the DHS/DDHS would be answerable to the Government for this lapse.
Remuneration during Post Graduation :
7.1 GDOs appointed on contract basis and sponsored for pursuing post graduation within the State as per clause 5.3 shall be paid the contractual
salary as per their contract agreement.
7.2 Regular GDOs sponsored for pursuing post graduation within the State and outside the State on sponsored quota seats of Autonomous Institutions
as per clause 5.3 shall be treated on duty during the prescribed period of Post Graduation and he/she shall be paid the regular pay, allowances
including increments for such prescribed period. In case, the sponsored GDO is not able to complete the Post Graduation within the prescribed time
period, the extra period spent during Post Graduation beyond the prescribed period may be regularized against the leave of kind due. If there is no
sufficient leave of kind due in his/her credit, that period shall be treated as EOL and the payment made to the person for this period shall be recovered
from the candidates.
7.3 Direct candidates shall be paid stipend as applicable to them subject to the exception, if chosen for, as per clause 6.8.1.
Remuneration during the mandatory field posting :
8.1 The regular GDO shall continue to draw the emoluments and pay admissible to him/her with due allowances and increments during the period of
mandatory field posting.
8.2 The contractual GDO shall continue to draw the salary as admissible to him as per terms of the contract.
8.3 The Direct candidates shall draw salary at the rate as admissible for contract and shall be treated as contractual GDOs for all practical purposes
during the period of mandatory field posting. However, if the direct candidate subsequently joins as Senior Resident in any of the Medical Colleges
after completion of mandatory first year of field posting, he shall draw the pay as prescribed for a Senior Resident.
Terms for leaving Post Graduation course midway :
9.1 If the GDO’s who have been granted sponsorship for pursuing Post Graduation within the State or outside the State, leaves the Post
Graduation course midway, he/she shall be debarred to re-appear in any entrance examination for Post Graduation for the next five years within and
outside the State of Himachal Pradesh. The period of five years for the purpose of de-barring shall be reckoned from the date of leaving the course
midway.
9.2 In addition to this, for those GDO’s who leave post graduation course mid way, the period spent in the Medical Colleges during Post
Graduation may be regularized against the leave of kind due. If there is no sufficient leave of kind due in his credit that period may be treated as EOL
and the payment made to the person for this period shall be recovered from the candidates. In addition to this, the GDO shall have to pay Rs. 10
Lakhs in event of leaving the course midway as per terms of the bond.
9.3 In case of direct candidates who leave the course midway, they shall have to pay Rs. 10 lakh to the State Government as per the terms of the
bond. Information in respect of such cases shall be sent to the DHS by the concerned Principal along with bond and other documents.
Terms for second Post Graduation Course.â€"The GDOs who have been sponsored to pursue Post Graduation within or outside the state earlier
and who are desirous of pursuing a second Post Graduation Course shall be governed by the following conditions:
1 The GDOs who have completed PG Degree in one specialty shall not be granted sponsorship/NOC for pursuing PG Degree in any other
specialty. However, such candidates may pursue their second PG degree course only after the grant of EOL by the Government as per CCS Leave
Rules.
2 The GDOs who have completed PG Diploma/DNB in one specialty may be given NOC for pursuing PG Degree in the same specialty, only
after serving the state for at least five years (either in field postings or in Government Medical/Dental Colleges) after completion of PG
Diploma/DNB.
3 The GDOs who have completed PG Diploma/DNB in one specialty shall not be granted NOC for pursuing PG Degree/DNB/Diploma in any
other specialty. However, such candidates may pursue their second PG degree course only after the grant of EOL by the Government as per CCS
(Leave) Rules.
4 Any GDO who is not fulfilling the condition of minimum required service to be sponsored as Post Graduate Candidate within or out of the state
shall have to resign on their selection against direct/open seats before joining such courses. And if he/she joins Post Graduation without getting NOC
from the Government or without submitting his/her resignation, in case of contractual GDO his/her services shall be deemed terminated and recovery
shall be made as per terms of contract agreement and in case of regular GDO candidate, disciplinary proceedings shall be initiated besides writing to
the concerned Head of Institute for cancellation of the admission.
NOC and Sponsorship for pursuing Super Specialty courses:
11.1 NOC/Sponsorship for GDOs :
11.1.1 There shall be no requirement of NOC for appearing in the All India NEET Super Specialty or any other Entrance Examination to the Super
Specialty Courses prescribed except for appearing against the Sponsored quota seats of the Autonomous Institutions.
11.1.2 Since the state needs the services of super specialists to improve the health care facilities within the state, the state would offer sponsorship to
candidates who wish to pursue super-specialty courses, subject to following conditions:â€
(a) GDO seeking sponsorship should be regular and should have completed the mandatory service of the State after Post Graduation as per clause 6.1
if the candidate had pursued post graduation earlier as a sponsored candidate.
(b) Those candidates who had initially joined as Direct Candidates but subsequently turned GDO or those who have joined GDO ship after doing Post
Graduation from elsewhere shall be considered for sponsorship to Super specialty Courses subject to the condition that the GDO should be regular and
should have served the State for at least three years including one year of mandatory field posting.
(c) In case of GDOs, who fulfil the conditions as laid down at clause (a) and (b) above, and have cleared NEET-SS or any such prescribed
examination including unsponsored seats of Autonomous Institutions shall apply to the DHS for Sponsorship and shall be relieved after fulfilment of
formalities as prescribed at Clause 11.3.
(d) In case of GDOs, who wish to pursue the Super Specialty Courses on sponsored seats of Autonomous institutions, NOC shall be granted only
subject to fulfilment of clause 11.1.2 (a) and (b), notwithstanding the requirement of lesser/greater service in the prospectus of any particular
Autonomous Institution.
(e) Such candidates who have been granted NOC as prescribed at Clause (d) above and have been subsequently selected to pursue the Super
Specialty Course against sponsored quota of Autonomous Institutions shall apply to the DHS for relieving and shall be relieved after fulfilment of
formalities as prescribed at Clause 11.3.
11.1.3 There shall be no annual capping on the number of sponsored seats for Super Specialty Courses.
11.1.4 Any GDO who is not fulfilling the condition of minimum required service to be sponsored as Super Specialty Candidate within or out of the
State shall have to resign and complete the obligation of the bond on their selection against direct/open seats before joining such courses. And if he/she
joins Super Specialty Course without getting NOC/Sponsorship from the Government or without submitting his/her resignation, in case of contractual
GDO his/her services shall be deemed terminated and recovery shall be made as per terms of contract agreement and in case of regular GDO
candidate, disciplinary proceedings shall be initiated besides writing to the concerned Head of Institute for cancellation of the admission.
11.2 NOC/Sponsorship for Medical Faculty :
11.2.1 The State shall also allow the regular medical faculty to pursue Super Specialty Courses for career progression and providing better services to
the patients of the State. However sponsorship shall only be available for the sponsored quota seats of Super Specialty Courses in Autonomous
Institutions.
11.2.2 The conditions of sponsorship for medical faculty shall be the following:
(a) The Medical faculty should be regular.
(b) He/she should have served for a minimum period of three years in the Medical College as Assistant Professor or above.
(c) He/she should be occupying a post which is over and above the MCI requirement for running of Under Graduate/Post Graduate courses in the
concerned institutions. For instance if as per MCI requirement two posts of Assistant Professors are required in Department of Medicine in a
particular institutions and the candidates who is seeking sponsorship is one amongst the only two Assistant Professors available, he/she will not be
given the benefit of the Sponsorship in any case. However, if there are three or more Assistant Professors working against the sanctioned strength,
which is more than the MCI requirement, sponsorship may be granted on a first come first serve basis.
11.2.3 The DME shall be competent to sign the Sponsorship Certificate on the behalf of the Government subject to fulfillment of conditions as outlined
at clause 11.2.2 above and clause 11.3 below.
11.2.4 In the event of selection of the applicant who has been issued sponsorship certificate, the post which the incumbent was occupying before
leaving for the course shall remain vacant and the incumbent shall join back on the same post after completion of Super Specialty Course. The medical
faculty candidate who has successfully completed the course and joined back the Medical Education Department shall be entitled for seniority of the
prescribed duration of the course in the same department. However, any formal designation/promotion shall happen only once the candidate joins
back. In case, the incumbent wants to join against available entry level vacancy in the Super Specialty Department, he/she shall be allowed to join.
However, in no case shall the incumbent be allowed to occupy the higher post in the Super Specialty Department and his services in that department
shall be counted from the date of actual joining for the purpose of seniority/promotion etc.
11.2.5 In case any candidate of the regular medical faculty wants to appear for/pursue Super Specialty through NEET-Super Specialty Examination or
the unsponsored quota seats of Autonomous Institutions, he/she may avail leave of kind due including study leave. However, in case sufficient leave is
not admissible, the candidate will have to resign from the post and the post shall be deemed vacant for all purposes. And if he/she joins Super
Specialty Course without getting NOC/Sponsorship from the Government or without submitting his/her resignation, disciplinary proceedings shall be
initiated besides writing to the concerned Head of Institute for cancellation of the admission.
11.3 Terms and Conditions of Sponsorship for Super Specialty Courses :
11.3.1 As the Government incurs substantive expenditure on each candidate for doing Super Specialty and also pays them full pay during the course,
every GDO (regular) who have been sponsored to pursue Post Super Specialty within the State in Government Medical/Dental colleges shall have to
furnish a bond to serve the State for at least five years after completion of their respective courses. Similarly, in case of GDOs/medical faculty
sponsored for Super Specialty outside the State (including sponsored quota seats of Autonomous Institutions), as the Government pays them full pay
alongwith increments during the course, every GDO (regular)/medical faculty who has been sponsored to pursue Super Specialty outside the State
shall have to furnish a bond to serve the State for at least seven years after completion of their respective courses. Similarly, as the Government
expends huge resources in the education of Direct Candidates including payment of stipend, every direct candidate who pursues Super Specialty
within the State in Government Medical/Dental Colleges shall have to furnish a bond to serve the State for at least three years after completion of
their respective courses.
11.3.2 The categories of Super specialty Students (GDO/Direct) shall furnish bond as per detail below:
(a) The candidates shall furnish a bond in the form of a legal undertaking to serve the State for prescribed period failing which the candidate shall have
to pay the Rs. 60 Lakhs to the State Government. The candidate shall also furnish an undated cheque from a scheduled bank amounting to Rs. 60
Lacs (Sixty lacs) in the name of DHS (in case of GDOs) and or DME (in case of medical faculty/direct candidates). The DHS/DME shall be at
liberty to get the cheque encashed in event of violation of the bond conditions.
(b) The candidates shall also furnish undertaking as a part of bond that they shall complete the course prescribed failing which they shall be liable to
pay Rs. 15 lakhs to the State government for wastage of seat.
(c) The prescribed format of the bond shall be as per Annexure- B.
11.3.3 The general conditions including violation and procedure to be adopted shall be same as outlined in Clause 6, unless otherwise prescribed in this
clause.
11.4 For leaving the course midway :
11.4.1 The GDOs, who leave the DM/MCh Super Specialty Course midway either within the State or outside the State of H.P., shall stand debarred
to re-appear as a sponsored candidate for pursuing DM/MCh Super Specialty Course for next five years, for both within the State and outside the
State of H.P. The period of five years for the purpose of de-barring shall be reckoned from the date of leaving the course midway.
11.4.2 In case, the GDO who has been sponsored and treated as on duty (with full pay and allowances), leaves the course midway, the period
involved shall be converted into/debited from Leave of Kind Due standing in his credit on the date on which he proceeded to join such course. If there
is no sufficient leave of kind due in his credit that period may be treated as EOL and the payment made to the person for this period shall be
recovered from the candidates. In addition to this, the GDO shall have to pay Rs. 15 Lakhs in event of leaving the course midway as per terms of the
bond.
11.4.3 In case of direct candidates who leave the course midway, they shall have to pay Rs. 15 lakh to the State Government as per the terms of the
bond. Information in respect of such cases shall be sent to the DME by the concerned Principal along with bond documents.
Miscellaneous:
12.1 For the purpose of incentive, this Policy shall be applicable henceforth; meaning thereby the GDOs who have served in field postings in the past
will be awarded incentive as per previous Notification dated 20-03-2017 (and amended from time to time) and any GDO who is serving/will serve in
any field posting will be entitled for incentive as prescribed in this Policy from now onwards.
12.2 Keeping in view deficiency of Doctors in the peripherals postings and the problems being faced by the Resident Doctors pursuing Post
Graduation in various colleges of the State, this Policy shall be applicable to every candidate pursuing post graduation (irrespective of year of joining)
and all such candidates shall have to furnish a Bond as per this Policy and they shall also be entitled to avail concessions in this Policy like in terms of
mandatory service and relaxation in FDR vis-Ã -vis previous policy in this regard. All such candidates shall within one month of the notification of the
policy, submit bond as per this policy and the FDR shall be returned to the respective candidates thereafter. If any candidate fails to do so, the FDR
already submitted shall be forfeited and appropriate action shall be initiated against the defaulting candidate.
12.3 The State Government reserves the right to alter/amend any provision in the PG Policy at any time/from time to time.
By order,
Sd/-
(R. D. DHIMAN),
Additional Chief Secretary (Health).â€
As per clause 5.2 of aforesaid policy, NOC shall be issued to GDOs desirous of pursuing Post Graduation from the autonomous institutions for
appearing in their entrance examination against the sponsored quota subject to the condition that he/she should be regular and should have three years
of uninterrupted continuous services without any break or unauthorized absence Once, GDO after having obtained NOC appears in entrance
examination as referred to above and gets selected, he with a view to avail sponsorship, is under obligation to furnish bond in terms of clause 6.1 of the
Policy to the effect that he/she shall serve the State for mandatory period of five year after completion of respective course, failing which he/she shall
pay sum of Rs.40.00 Lakh to the State government. Candidate concerned would furnish undated cheque from scheduled bank in the name of Director
Health Services, which can be encashed by the Department, in case of violation of bond conditions. Besides above, candidate selected against
sponsored quota is required to deposit his/her original degree with Director Health Services/DDHS, in case of direct candidates/ GDO’s, which
shall be released after completion of bond period or deposition of requisite amount. Apart from aforesaid condition, candidate selected against
sponsored quota is also required to furnish undertaking as part of bond that he /she shall complete prescribed course, failing which he/she shall have to
pay Rs.10.00 Lakh to the State Government for wastage of seat.
Clause 11.1.2 of the 2019 Policy specifically deals with the sponsorship of candidates against super-specialty courses. As per aforesaid clause,
GDO seeking sponsorship besides being in regular service, should have completed the mandatory service of the State after Post Graduation as per
clause 6.1 of the Policy, if the candidate had pursued post graduation earlier as a sponsored candidate.
Once NOC to pursue super specialty course is granted in favour of candidate desirous of pursuing aforesaid course, against sponsored seat in
autonomous institutions in terms of clause 11.1.2, he/she is under obligation to furnish bond in terms of terms and conditions of sponsorship for super-
specialty course contained in Clause 11.3.1, which provides that candidates sponsored to pursue Super Specialty outside the State shall have to furnish
a bond to serve the State for at least seven years after completion of their respective courses and in case he/she fails to serve the State in terms of
aforesaid bond, he shall have to furnish an undated cheque from a scheduled bank amounting to Rs. 60 Lakh (Sixty Lakh) in the name of DHS (in
case of GDOs) and or DME (in case of medical faculty/direct candidates), who shall be at liberty to get the cheque encashed in event of violation of
the bond conditions.
In case, GDO sponsored for super-specialty course in autonomous institution fails to complete the course and leaves the course midway, he/she
shall have to pay 15 Lakh in the event of leaving course midway.
If aforesaid Policies of the years 2017 and 2019 promulgated by the state of Himachal Pradesh for regulating admissions to various post
graduation and super-specialty course in medical education within/outside the State are perused juxtaposing each other, it can be safely inferred that
by and large, conditions contained in both the notifications are pari materia same, save and except the amount of the bond as well as period of
mandatory service. The only major difference in aforesaid two policies is that in 2017 Policy, for pursuing super-specialty (DM/MCh) courses within
and outside the State, all GDOs, who had done post-graduation during service were eligible for pursuing DM/MCh Courses without condition of
serving the State after PG whereas, GDOs who joined State Health Services directly after PG course, were under obligation to serve for two years
for becoming eligible for DM/MCh course as sponsored candidate. Most importantly, in Clause 4.3 of the aforesaid 2017 Policy (Annexure B), it was
provided that in case the GDO is selected for doing second PG course, he shall have to again furnish a bond to serve the State as provided in Clause
4.1 and in case the GDO is selected for doing second PG course during the bonded period of service, he/she shall have to serve the balance period of
earlier bonded service in addition to the bonded service of second PG course as the duration of second PG course shall be excluded from the bonded
period of service, meaning thereby GDO after having done his PG against sponsored quota though was under obligation to serve the State, for three
years after completion of post graduation but in case, he was selected for super-specialty i.e. DM/MCh course during the existence of bonded period,
he/she though was permitted to join super-specialty course of DM/MCH for next five years, but after having done such Super specialty course, he/she
was to serve the balance period of earlier bonded service in terms of bond furnished by him /her at the time of taking admission in PG course in
addition to seven years, which he was otherwise under obligation to serve the State in terms of bond furnished by him while taking admission in super-
specialty course.
However, in the 2019 Policy, (Annexure P-3, aforesaid condition as contained in clause 4.3 of 2017 policy, is not incorporated, as a consequence
of which, candidate after having completed post graduation course cannot apply for super -specialty course till the time, he/she serves the Department
for at least 4 years including first mandatory field service after completion of his/her post graduate course.
Being aggrieved on account of non-incorporation of condition as contained in Clause 4.3 of the 2017 Policy in subsequent 2019 Policy and
condition of mandatory service as provided under Clauses 6.1 and 11.1.2 of the 2019 Policy, petitioners have approached this court in the instant have
been taken in CWP No. 2176 of 2021:
“i) A writ of mandamus may kindly be issued by directing the respondent authorities to issue sponsorship certificate/NOC as sponsor category
candidate to apply and appear in the examination of Super Specialty curt (M.Ch) Urology at AIIMS in which last date for application closes on
07.04.2021;
and/or
ii) A writ of mandamus may kindly be issued by directing the respondent authorities to issue NOC as sponsor category candidate to apply and appear
in the examination of Super Specialty Course (M Ch) Urology at PGI MER, Chandigarh in which last date for application closes on 24.04.2021; and/or
iii) Issue a writ of certiorari quashing Annexure P-3 which is non beneficial and against the interest of the petitioner and candidates like petitioner at
large; and /or
iv) Further issue a writ of mandamus directing respondent authorities to consider the Petitioner in 2017 policy in view of the amendment in June 2019
in 2019 Policy; and /or
v) Issue a writ of mandamus directing respondents to relieve the Petitioner from Zonal Hospital Mandi, if the petitioner is selected at AIIMS; and/or
vi) Issue a writ of mandamus directing respondents to relieve the Petitioner from Zonal Hospital Mandi, if the Petitioner is selected at PGI MER
Chandigarh; and /orâ€â€
I have heard the parties and gone through the record.
Having heard Learned Senior Counsel/Counsel appearing for the parties and gone through the material available on record, this court finds that
there is no dispute inter se parties that all the petitioners herein after having done their MBBS/graduation in medical sciences, joined medical services
in the State of Himachal Pradesh and they all subsequently, with a view to enhance their education and professional skills, did PG in their respective
fields in terms of 2017 Policy, Annexure P-2. Petitioners, after having done their PG in respective fields have been serving State of Himachal Pradesh
in terms of bonds executed by them at the time of their admission to PG courses against sponsored seats. It is also not in dispute that all the above
named petitioners before being selected against sponsored seats of PG courses within or outside the State had been serving the State continuously,
without there being any break, that is why, respondent-State in terms of 2017 Policy, granted NOC in their favour enabling them to pursue PG courses
against sponsored quota within and outside the State in autonomous institutes.
In March, 2021, All India Institute of Medical Sciences (for short, ‘AIIMS’) New Delhi and Post Graduate Institute of Medical Education
and Research (for short, ‘PGI’) Chandigarh, which are autonomous institutions, as per Clause 3.1.1 of 2019 Policy, issued prospectus for
DM/MCh (Magister Chirurgiae or Master of Surgery) in various fields (Annexure P-5), inviting therein applications for admission in various super-
specialty courses. Petitioners herein being in-service candidates applied for the super-specialty courses in the fields of Urology (Dr. Manoj Sharma),
DM Nephrology (Dr. Varun Jaswal), DM Histopathology (Dr. Aarti Dhatwalia), MCh(Dr. Mahender Singh Rana) and Gastroenterology (Dr. Sohil
Chuahan), against sponsored seats in terms of clause 11.1.2 of 2019 Policy i.e. Annexure P-3. Besides above, petitioners also applied to the
respondents through proper channel seeking therein permission to appear as a sponsored candidate (Annexure P-7 of CWP No. 2176 of 2021),
however, the fact remains that the respondents neither granted sponsorship to the petitioners nor rejected their cases, as such, petitioners
apprehending that their prayer shall be rejected by respondents on account of conditions contained in Clauses 6.1 and 11.1.2 of the 2019 Policy,
wherein it is specifically provided that the GDO provided sponsorship besides being in regular and should have competed mandatory service of State
as per Clause 6.1, approached this Court in the instant petitions seeking therein similar relief(s) as have been reproduced herein above.
Vide order dated 1.4.2021, Hon'ble Division Bench of this court, while issuing notice to the respondents, directed them to have instructions and
posted the case(s) for 6.4.2021. On 6.4.2021, CMP No. 4281 of 2021 came to be filed on behalf of petitioner Manoj Sharma under Rule 13 Part II of
Part C (Civil Writs) of the High Court of Himachal Pradesh (Original Side) Rules, 1997 read with Order VI, rule 17 CPC, seeking permission to
amend the petition, since the representation having been made by the aforesaid petitioner to consider his case for sponsorship for pursuing super -
specialty course in PGI Chandigarh came to be rejected. This court, while allowing aforesaid application, permitted the aforesaid petitioner to amend
the petition and ordered that the amended writ petition be taken on record. Since despite repeated opportunities respondent-State failed to file reply to
the main petition as well as stay application, i.e. CMP No. 4068 of 2021, this court vide order dated 6.4.2021, directed respondents to issue provisional
NOC in favour of the petitioner Manoj Sharma to enable him to participate in the examination in question. However, the Court, while passing aforesaid
order, clarified that issuance of provisional NOC shall abide by the final decision of the writ petition and issuance of NOC shall not create equities in
favour of the petitioner in case of his being declared successful in the examination. Records of all the writ petitions captioned herein above, reveal that
similar direction to issue provisional NOC in favour of all other petitioners also came to be passed by this Court, whereafter, all the petitioners
participated in the examination and have been declared successful. All the petitioners competed with thousands of candidates, who had applied for
super-specialty courses and have been declared successful. Since the petitioners appeared in the examination for admission to super-specialty courses
on the strength of provisional NOCs issued by respondents in terms of interim direction issued by this court and they after being declared successful,
have not been granted NOC for being considered as sponsored candidates, they are unable to complete the formalities of their admission in super-
specialty courses at PGI MER Chandigarh and AIIMS New Delhi. Since the petitioners herein are required to complete formalities and furnish NOC
issued in their favour by respondent-State for being considered as sponsored candidates, on or before 20. 7.2021, all these petitions came to be listed
before me for hearing on urgent basis.
Mr. B.C. Negi and Mr. Sanjeev Bhushan, learned Senior Advocates alongwith other learned Advocates, while representing petitioners herein
vehemently argued that the 2019 Policy, framed by the respondent State for regulating admissions to various PG/super-specialty courses in medical
education, in and outside the State, is non-beneficial and against the interests of petitioners as well as other similarly situate persons, who otherwise
have been regularly serving the State of Himachal Pradesh after doing their graduation in medical sciences. Above named learned senior counsel
while referring to Clauses 6.1 and 11.1.2 of 2019 Policy, vehemently argued that the very purpose and object of the policy are to ensure that the
doctors studying at the expenditure of Government serve the State and its public, after having acquired expertise in their fields so that the money spent
by the Government on their studies is not wasted and special skill /knowledge acquired by the doctors at the expense of the Government is put to use
for the benefit of the public at large. Learned senior counsel while making this court peruse the record, submitted that from day one all the petitioners
have been serving the State without there being any interruption, regularly and they otherwise are under obligation to serve the State in terms of the
bonds furnished by them at the time of their admission in MBBS course, PG course and Super-specialty course. While referring to Clause 4.3 of the
2017 policy, learned counsel representing the petitioners contended that in the year 2017 Policy, respondent-State with a view to equip its doctors with
latest education/knowledge in the field of medical sciences had made a specific provision for admission of doctors in super-specialty courses after
theirs having completed PG course. Vide aforesaid Clause, doctors after having completed their PG courses, though could apply for super-specialty
courses during subsistence of their earlier bond furnished at the time of admission to PG course, but after completion of super-specialty they were to
serve the balance period of earlier bonded service in addition to the bonded service of DM/MCh course and in such eventually, no loss, if any, could
be said to have been caused to anyone.
Learned Senior counsel representing the petitioners, while assailing condition of minimum service as contained in Clause 6.1 of 2019 Policy,
contended that the condition of minimum service as contained in Clauses 6.1 and 11.1.2 of the 2019 POlicy. if examined/tested, vis-Ã -vis the loud
object and purpose of permitting in-service candidates to pursue super -specialty courses, it can be safely held that the conditions of minimum service
contained in Clauses 6.1 and
1.2, is neither in the benefit of doctors aspiring to enhance their skills by doing super-specialty courses nor the public at large, who otherwise in the
event of petitioners acquiring special skill after doing super-specialty course, would be benefited immensely.
Lastly, learned senior counsel for the petitioners contended that the petitioners who are serving the State uninterruptedly, are ready to give
undertaking that they. After completing their super-specialty courses would not only serve the department for seven years in terms of bond to be
executed by them at the time of completion of super-specialty course, but would also complete the remaining period of bond earlier executed by them
at the time of admission to post-graduation course. Besides above, learned senior counsel representing petitioners, made available copies of judgments
passed by this court in CWP No. 2112 of 2020, titled Dr. Lucky Kumar vs. ACS and others, CWP No. 941 of 2019, State of Himachal Pradesh
versus Kunal Kumar and others, decided 20.5.2019 and CWP No. 4591 of 2020, Nipun Kumar vs. State of Himachal Pradesh to demonstrate that
pursuant to aforesaid judgment, candidates who were yet to complete their bonded service have been granted NOC’s by the respondent-State and
as such, being similarly situate, they also deserve similar treatment.
Mr.Ajay Vaidya, learned Senior Additional Advocate General, while opposing aforesaid prayer made on behalf of the petitioners, vehemently
argued that the condition of minimum service as envisaged in Clauses 6.1 and 11.1.2 of the 2019 Policy, have been specifically provided in the Policy
keeping in view the larger public interest and as such, no illegality or infirmity if any, can be found in the same. Mr. Vaidya further argued that
otherwise also question with regard to imposing condition of service and bond by respondent-State while granting NOC for admission in medical
colleges and sponsoring candidates for super-specialty courses has been upheld by Hon’ble Apex Court in many cases as such, there is no
occasion for this court to re-examine this matter, which otherwise stands duly settled. Mr. Vaidya, further contended that since 2017 Policy stands
superseded by 2019 Policy, no benefit, if any can be derived by the petitioners in terms of Clause 4.3 of the 2017 Policy, especially when they all at
the time of their admission to PG courses have furnished bond undertaking therein that after doing PG courses on public expenses, they shall serve the
Department uninterruptedly for four years or in the breach of said condition shall pay Rs.40.00 Lakh to the State government. Mr. Vaidya further
contended that all the petitioners after completion of their post-graduation have not completed four years and as such, not entitled to sponsorship to
pursue super-specialty courses in terms of Clause 11.1.2, which otherwise provides that the GDO seeking sponsorship should be regular and should
have completed mandatory service of the State after PG, as per Clause 6.1.
Lastly, Mr. Vaidya, learned Senior Additional Advocate General contended that since the Hon'ble Division Bench in CWP No. 3184 of 2020 titled
Satish Kanwar vs. State of HP decided on 27.8.2020, CWP No. 602 of 2020 titled Mandeep Tomar vs. State of Himachal Pradesh, decided on
14.9.2020 and CWP No. 1968 of 2007, State of Himachal Pradesh vs Dr. Sanjay Vikrant, decided on 20 December, 2007, has already upheld
condition of minimum service contained in Clause 6.1, this court is estopped from examining the legality and validity of aforesaid Clause in the instant
proceedings.
Mr. Vaidya, learned Senior Additional Advocate General fairly admitted that pursuant to the direction issued by this Court, to grant provisional
NOC in certain cases, respondent-State in terms of judgment dated 3.7.2020 passed in CWP No. 2112 of 2020 titled Dr. Lucky Kumar vs. Additional
Chief Secretary (Health) and others, CWP No. 941 of 2019 State of Himachal Pradesh vs. Kunal Kumar and another, decided on 30. 5.2019, CWP
No. 4591 of 2020, Nipun Kumar vs. State of Himachal Pradesh have already issued NOC’s for being considered as sponsored candidates, despite
theirs having not completed the mandatory service in terms of Clause 6.1 of 2019 Policy.
Pleadings available on record reveal that the respondent-State has filed short-reply affidavit in CWP 4591 of 2020 titled Nipun Sharma vs. State,
CWP No. 2279 of 2021, Mahender Singh Rana vs. State of Himachal Pradesh, wherein while referring to Clauses 6.1 and 11.1.2 of the 2019 Policy
they have stated that since the petitioner(s) underwent the Course within the State, they are required to serve State for four years after completion of
course including first year of mandatory field posting to become eligible for grant of NOC and pursuing super-specialty course. Besides above,
respondents have also stated in their reply that sponsorship is a special policy of the State Government to provide super-specialty services in the State
and intention of policy makers behind providing provisions of mandatory service is to ensure uninterrupted service of super-specialists in the State in
the larger interest of State.
Before ascertaining correctness of submissions /counter-submissions made on behalf of learned counsel for the parties, this court deems it
necessary to deal with judgment dated 27.8.2020 in case titled Satish Kanwar vs. State of HP CWP No. 3184 of 2020, judgment dated 14.9.2020 in
CWP No. 602 of 2020 titled Mandeep Tomar vs. State of Himachal Pradesh and judgment dated 20.12.2007 in CWP No. 1968 of 2007, titled State of
Himachal Pradesh Vs. Dr. Sanjay Vikrant.
Though learned Senior Additional Advocate General, while making this Court peruse the judgments supra, made a serious attempt to persuade this
court to agree with his contention that since the legality and validity of Clauses 6.1 and 11.1.2 of the 2019 Policy, have been already examined/dealt
with by Division Bench of this Court, this court has no occasion to re -examine the same, but having carefully perused the aforesaid judgments
rendered by Division Bench of this Court, this court is not persuaded to agree with Mr. Vaidya, learned Senior Additional Advocate General. Bare
perusal of judgments supra reveals that at no point of time, challenge, if any, ever came to be laid to the conditions contained in Clauses 6.1 and 11.1.2
of the Policy, rather, in cases titled Satish Kanwar and Mandeep Tomer (supra), petitioners therein approached the Court on account of refusal by
State to grant NOC to pursue senior residency and to apply for the post(s) of Assistant Professor(s) in AIIMS Delhi, however, Division bench having
taken note of Clause 6.1 of the Policy, wherein specific condition of mandatory service is provided, refused to interfere, but did not give any specific
finding with regard to the legality and correctness, if any, of the condition of mandatory service provided in Clauses 6.1 and 11.1.2. Similarly, in the
cases of Dr. Sanjay Vikrant and Mandeep Tomer (supra), Division Bench upheld the decision of respondents not to grant NOC to the petitioners
concerned for the reason that they both intended to leave their service in the State of Himachal Pradesh despite having executed bond to serve for the
minimum period, and wanted to apply for the post(s) of Assistant Professor(s) in AIIMS Delhi and AIIMS Bilaspur, respectively. Petitioners in both
the above captioned cases, never sought NOC(s) to pursue higher studies/super-specialty courses, rather, they wanted respondents to issue NOC in
their favour, enabling them to join as Assistant Professor(s) in other institutions, but since they had executed bond to serve the State for the specified
period, they were denied the NOCs by the respondent-State.
Case of the petitioners herein, is altogether different to the cases (supra) decided by Division Bench of this Court. Petitioners herein after having
done their PG courses as sponsored candidates from the institutions within and outside the State, served the respondent-State for more than two years,
in terms of bond executed by them at the time of admission to PG course and now they intend to do specialization in their respective fields as
sponsored candidates. But since they have not completed the mandatory period of 4/5 years in terms of the bonds executed by them at the time of
taking admission in PG course, they are not being issued the NOC sfor being considered as sponsored candidate for taking admission in super-
specialty courses.
Though, Hon’ble Division Bench of this court in judgments referred to by learned Senior Additional Advocate General has not gone into
legality of Clauses 6.1 and 11.1.2 of the 2019 Policy, as such, this Court is not estopped from examining that issue but since issue with regard to
imposition of condition of mandatory service and execution of bond by respondents while granting admissions to various courses in medical education,
stands upheld by Hon’ble Apex Court in Assn. of Medical Superspeciality Aspirants & Residents v. Union of India, 2019 8 SCC 607, there is no
necessity at all for this court to apply its mind on this issue. Hon’ble Apex court in the aforesaid judgment, has categorically held hat once there is
no provision in the Medical Council of India Act touching upon the subject matter of compulsory bonds, States are free to legislate on the subject
matter of medical bonds. Executive authority of the State Government is co-extensive with that of the legislative power of the State Legislature. Even
in the absence of any legislation, the State Government has the competence to issue executive orders under Article 162 of the Constitution on matters
over which the State legislature has the power to legislate. The Notifications issued by the State Governments imposing a condition of execution of
compulsory bonds at the time of admission to post- graduate courses and super-specialty courses cannot be said to be vitiated due to lack of authority
or competence. Besides above, in aforesaid judgment it has been held that condition imposed for admission to medical colleges will not violate the right
of an individual to carry on his profession. The right to carry on the profession would start on the completion of the course. At the outset, there is no
doubt that no right inheres in an individual to receive higher education. Violation of a right guaranteed under Article 19(1)(g) does not arise in a case
pertaining to admission to a college. However, while upholding decision of respondent State to impose condition of execution of bond at the time of
admission, Hon’ble Apex Court has categorically held that the period of compulsory service and exit should be reasonable. In the aforesaid
judgment Hon'ble Apex Court directed State Governments and the Armed Forces Medical College to consider imposing condition of compulsory
service period of two years, in default of which doctors shall compensate the Government by paying Rs.20.00 Lakh. Relevant paragraphs of the
judgment (supra) are reproduced here-under:
“I. Jurisdiction of the State Government:
Schedule VII List 1 Entry 66 of List I of the 7th Schedule to the Constitution refers to coordination and determination of standards in institutions
for higher education or research and scientific and technical institutions. Entry 25 of List III of the 7 th Schedule deals with education, including
technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I. Legislations can be made by the
State Legislature relating to medical education subject to the legislation made by the Parliament. The Medical Council of India Act governs the field of
medical education in this country. Admittedly, there is no provision in the Medical Council of India Act touching upon the subject matter of compulsory
bonds. Therefore, the States are free to legislate on the subject matter of medical bonds. Executive authority of the State Government is co-extensive
with that of the legislative power of the State Legislature. Even in the absence of any legislation, the State Government has the competence to issue
executive orders under Article 162 of the Constitution on matters over which the State legislature has the power to legislate. The Notifications issued
by the State Governments imposing a condition of execution of compulsory bonds at the time of admission to post-graduate courses and super
Speciality courses cannot be said to be vitiated due to lack of authority or competence. The field of bonds requiring compulsory employment is not
covered by any Central Legislation. Therefore, the submissions made on behalf of the Appellants that the States lacked competence to issue the
notifications as the field is occupied are rejected.
II. Violation of Fundamental Right
Article 14
A. Arbitrariness
The Appellants are aggrieved by the decision of the State Governments imposing conditions for their admission in the post-graduate courses and
super Speciality courses. According to them, the State Governments have understood the decision of this Court in Harsh Pratap Sisodia (supra) to be
a restraint on the exercise of their power in matters relating to eligibility criteria for admission to medical course. Suddenly, the introduction of the
compulsory bonds after 15 years of the judgment in Harsh Pratap Sisodia (supra) is the result of decision taken by the State Governments which is
dubbed by the Appellants as arbitrary. This Court in Harsh Pratap Sisodia (supra) was concerned with the additional eligibility criteria being introduced
by the State Governments for the 15% All India Quota students. The decision taken by the State Governments to impose a condition of compulsory
bond for admission to post-graduate courses and super Speciality is on the basis of relevant material. Huge infrastructure has to be developed and
maintained for running medical colleges with post-graduate and super Speciality courses. The amount of fees charged from the students is meagre in
comparison to the private medical colleges. Reasonable stipend has to be paid to the doctors. Above all, the State Governments have taken into
account the need to provide health care to the people and the scarcity of super specialists in their States. Consequently, a policy decision taken by the
State Governments to utilize the services of doctors who were beneficiaries of Government assistance to complete their education cannot be termed
arbitrary.
B. Reasonableness:
Reasonableness is a ground that pervades through the submissions made by the counsel on both sides. In the State of West Bengal, the
requirement of a compulsory bond was initially a service of one year in the State in default of Rs.10 Lakhs was to be paid. This was enhanced to
three years and Rs.30 Lakhs by a Notification dated 09.10.2014. In the State of Tamil Nadu, the bond condition was that a doctor has to serve for ten
years in the State and in default of which, the doctor was to pay Rs.2 Crores. This was reduced to two years and Rs.50 Lakhs. The Armed Forces
Medical College imposes a condition of five years compulsory service in the Army for post-graduate and super Speciality doctors who prosecuted
their study in the college. They have an option of not serving for five years by recompensing the Government by paying Rs.25 Lakhs. The main
contention of the counsel appearing for the Appellants is that the condition of a long period of service that is imposed is unreasonable. The basis for
the submission is that they have already served the society by working in Government hospitals while undergoing their course. Further conditions
imposed on them would impede the progress of their careers. Restrictions placed on their choice of place of work are also unreasonable according to
them. An alternate submission made by the counsel appearing for the Appellants is that the imposition of the condition of compulsory bond should be
reasonable and the exit clause should be relaxed. Notifications issued by the State Governments imposing a condition of compulsory service and a
default clause are per se not unreasonable. However, we are in agreement with the learned counsel for the doctors that the period of compulsory
service and the exit should be reasonable. The State Governments and the Armed Forces Medical College are directed to consider imposing the
condition of compulsory service period of two years in default of which the Doctors shall recompense the Government by paying Rs. 20 Lakhs.
Article 19:â€
It is quite apparent from aforesaid law laid down by Hon’ble Apex Court that though the State, while granting admission in various streams of
medical sciences, is well within its right to impose condition of compulsory service so that a person who becomes doctor at the expense of State is
made to serve the society for specified period but the Hon’ble Apex Court in the aforesaid judgment has categorically held that condition of
compulsory service should be reasonable.
Similarly, though the action of State Government compelling candidates seeking admission in medical colleges to execute bond for serving State for a
minimum period after completion of course failing which to pay specified amount, has been upheld by Hon’ble Apex Court, but it has been
categorically held in the aforesaid judgment that the amount of bond should be reasonable.
In the case at hand, pleadings adduced on record by the petitioners, if are read in their entirety vis-Ã -vis the prayer(s) made in the petitions,
nowhere suggest that there is a direct challenge, if any, to the condition of mandatory service provided under Clauses 6.1 and 11.1.2, rather, petitioners
are aggrieved by period of mandatory service as provided under Clause 11.1.2, which though enables GDO to seek sponsorship to pursue super-
specialty course after completion of PG course, but subject to his/her having completed mandatory service in terms of bond executed by him/her at the
time of admission to post graduation course.
There cannot be any quarrel with the condition of mandatory service as has been envisaged under Clause 6.1 of the 2019 Policy, which provides
that every GDO (regular or contract), who has been sponsored to pursue PG in Government Medical/Dental colleges shall have to furnish a bond to
serve the State for at least five years after completion of his course but period of mandatory service cannot be unreasonable.
Though Clause 11.1.2 enables candidates having PG degree to seek sponsorship to pursue super-specialty course but not before completion of
mandatory service in terms of bond executed by him/her as per Clause 6.1. As has been taken note herein above, there is no direct challenge to
Clause 6.1 of the 2019 Policy, by the petitioners in the instant petitions, but once they are aggrieved by conditions contained in Clause 11.1.2, this court
necessarily needs to look into the reasonableness of condition of mandatory service as provided under Clause 6.1.
In Assn. of Medical Superspeciality Aspirants & Residents (supra), in the State of West Bengal, there was a requirement of compulsory bond of
initial service of one year and in default to pay Rs.10. Lakh, however, same was subsequently enhanced to 3 years and Rs.30 Lakh by Notification
dated 9.10.2014. In the State of Tamilnadu, bond condition was that a doctor has to serve for ten years and in default to pay Rs.2.00 Crore, however,
subsequently these were reduced to two years and Rs.50 Lakh, respectively. Similarly Armed Forces Medical College imposed condition of
mandatory service of five years for pursuing PG and super-specialty courses, by the doctor who prosecuted studies in college and in the event of
default to pay Rs.25.00 Lakh.
Hon’ble Apex Court though upheld the imposition of condition of compulsory bond by the State Governments and Armed Forces Medical
College, but categorically held that the period of compulsory service and exit should be reasonable.
In the case at hand, though the respondent-State is well within its right to impose condition of mandatory service while sponsoring in-service
candidates for super-specialty courses against sponsored quota but as has been held by Hon'ble Apex Court in judgment supra, period of compulsory
service should be reasonable.
In the case at hand, perusal of Clause 6.1 suggests that the GDOs sponsored to pursue PG within State in Government Medical
Colleges/Government Dental Colleges are required to furnish bond to serve the State for four years including mandatory first year posting in the field,
failing which to pay Rs.40.00 Lakh to the State Government and GDO sponsored for PG outside the State on sponsored quota seats of autonomous
institutions is required to furnish bond to serve the State for five years including mandatory first year of field posting after completion of his/her
respective course, and in default to pay Rs.40.00 Lakh.
Similarly, perusal of Clause 11.1.2 of the 2019 Policy reveals that the candidates seeking sponsorship to pursue super-specialty courses are
required to serve the Department for seven years after completion of super -specialty courses in terms of Clause 11.3.1 and in default to pay Rs.60.00
Lakh. On the top of everything condition of mandatory service as provided under Clause 11.1.2, which provides for sponsorship to candidate who
wishes to pursue super-specialty course, is highly unreasonable because candidate seeking admission to super-specialty course after having done post
graduation course is required to serve the Department mandatory for a period of four years in case he was sponsored to pursue PG within State
whereas, candidate who is sponsored for PG outside the State is under obligation to serve state for at least five years and in default to pay Rs.40.00
Lakh.
Since the Apex Court vide judgment dated 19.8.2019 (supra), has already directed the State Governments and the Armed Forces Medical College
to consider imposing condition of two years, in default of which doctor shall compensate the Government by paying Rs.20.00 Lakh, condition as
provided under Clause 6.1 requiring a GDO (regular/contract) to serve at least for four years /five years after having done PG cannot be allowed to
sustain, rather by now, the respondents, in terms of directions of Apex Court should have amended Clause 6.1 by reducing period of mandatory
service and amount of bond.
In the aforesaid judgment, Hon’ble Apex Court having taken note of period of mandatory service fixed by State of West Bengal, State of
Tamil Nadu and Armed forces Medical College, wherein periods of three years, ten years and five years were provided, directed the State
governments and the Armed Forces Medical College to consider imposing of condition of mandatory service of two years and in default to pay
amount of Rs.20.00 Lakh. Hence, condition of mandatory service of four/five years provided in Clause 6.1 deserves to be quashed, as a consequence
of which condition of mandatory service as contained in Clause 11.1.2, which provides for sponsorship to the candidates, who wish to pursue super-
specialty courses, cannot be pressed and candidates who have already rendered mandatory service of more than two years after completion of their
PG course pursuant to bonds executed by them at the time of their admission cannot be denied sponsorship in case they are otherwise eligible.
As has been categorically held by Apex Court and observed by this Court in para supra, respondent-State is well within its right to impose
condition of mandatory service and execution of bond, while granting admission in various streams of medical sciences but period of such mandatory
service and amount of bond prescribed under the policy have to be reasonable and definitely same cannot be unreasonable/arbitrary.
No doubt, decision taken by State government to impose condition of bond for admission to PG and super-specialty courses is on the basis of
relevant material, huge infrastructure is to be maintained for running college with PG and super-specialty courses and amount of fee charged from the
students is meager, in comparison to private medical colleges. State government having taken into account need to provide medical facilities to its
people and super-specialists in the State, have taken a policy decision to sponsor its doctors for higher education so that subsequently the service of
the doctors, who are beneficiaries of Government assistance to complete their education, are put to the benefit of the general public, but at the same
time, State, while providing opportunity to the doctors to enhance their expertise, knowledge and skills, cannot impose conditions which are highly
arbitrary, unreasonable and can cause undue pressure on the doctors pursuing higher studies being sponsored candidates.
Otherwise also it is the obligation of the State under the Constitution to ensure the creation of conditions necessary for good health including
provisions for basic curative and preventive health services and assurance of healthy living and working conditions. Under Articles 39(e), 39(f) and 42
of the Constitution, obligations are cast on the State to ensure health and strength of workers, men and women; ensure children are given opportunities
& facilities to develop in a healthy manner and to secure just & humane conditions of work and for maternity relief, respectively. Article 47 of the
Constitution makes improvement of public health a primary duty of the State hence, it is bounden duty of State to provide best health care system to
the public at large. It is otherwise duty of the State to provide special education/latest education and exposure to latest technology to its doctors
rendering services in various medical hospitals. No doubt, while providing special education/advance education, State may have to incur some
expenses but to recover such amount, doctors who pursued their higher studies being sponsored candidates, cannot be put to undue hardships by
imposing unreasonable and unrealistic conditions in the bonds supposed to be executed by them at the time of their admission to the super-specialty
courses.
No doubt, while providing special education, /advance education, State may have to incur some expenses but that cannot be recovered from the
doctors who were sponsored by it to pursue PG and super-specialty courses. Art. 21 of the Constitution of India. imposes an obligation on the State to
safeguard right to life of every person. Preservation of human life is of paramount importance. Government hospitals being run by the State and the
medical officers employed therein are duty bound to extend medical assistance for preserving human, life. Failure on the part of Government hospitals
to provide timely medical treatment to a person in need of such treatment results in violation of his right guaranteed under Art. 21 of the Constitution
of India (See: Paschim Banga Khet Mazdoorsamity vs State Of West Bengal & Anr (1996) 4 SCC 37 (Paras 9 and 16). In a ‘Welfare State’, it
is the obligation of the State to ensure creation of sustainable conditions congenial to good health, including provision of super-specialties so that people
are not made to run from pillar to post to get medical treatment.
True it is that the State with a view to ensure that the doctors sponsored by it for PG /Super specialty courses are made to serve the State, can
bind them to serve the State for specified period but such period, as has been held by apex Court, can be reasonable and not unreasonable.
Apex Court in Modern Dental College & Research Centre v. State of M.P. (2016) 7 SCC 353, has held that maintenance and improvement of
public health and to provide health care and medical services is the constitutional obligation of the State. To discharge this constitutional obligation, the
State must have the doctors with professional excellence and commitment who are ready to give medical advice and services to the public at large.
State can satisfactorily discharge its Constitutional obligation only when the aspiring students enter into the profession based on merit. Paragraphs 171
and 172 of the judgment (supra) may be profitably extracted herein below:
“171. It is the obligation of the State under the Constitution to ensure the creation of conditions necessary for good health including provisions for
basic curative and preventive health services and assurance of healthy living and working conditions. Under Articles 39(e), 39(f) and 42 of the
Constitution, obligations are cast on the State to ensure health and strength of workers, men and women; ensure children are given opportunities &
facilities to develop in a healthy manner and to secure just & humane conditions of work and for maternity relief, respectively. Article 47 of the
Constitution makes improvement of public health a primary duty of the State. However, right to health is no longer in the sole domain of Part IV of the
Constitution. In Kirloskar Brothers Ltd. v. Employees’ State Insurance Corp. (1996) 2 SCC 682, it was held that right to health is a fundamental
right of workers and the maintenance of health is most imperative constitutional goal whose realization requires interaction of many social and
economic factors. In Rajasthan Pradesh Vaidya Samiti, Sardarshahar and another v. Union of India and others (2010) 12 SCC 609, this Court held
that the citizens of this country have a right under Article 21 of the Constitution of India which includes the protection and safeguarding the health and
life of public from mal-medical treatment. More recently in Centre for Public Interest Litigation v. Union of India (2013) 9 SCR 1103, again this Court
has recognized that right to life under Article includes right to health.
17.2 Maintenance and improvement of public health and to provide health care and medical services is the constitutional obligation of the State. To
discharge this constitutional obligation, the State must have the doctors with professional excellence and commitment who are ready to give medical
advice and services to the public at large. State can satisfactorily discharge its constitutional obligation only when the aspiring students enter into the
profession based on merit. None of these lofty ideals can be achieved without having good and committed medical professionals.â€
Very purpose and object of formulating policy to sponsor candidates to pursue super-specialty courses are to provide better health services to the
public at large and aforesaid object and purpose can only be achieved if doctors serving the State are given opportunity at first instance to hone their
professional skills by undergoing super-specialty courses from premier institutes. Though Clause 11.1.2 provides an opportunity to GDOs having PG
degree to take admission in super-specialty courses as sponsored candidates but before doing so, they are compelled to have completed mandatory
service of four/five years on account of theirs having furnished bond at the time of taking admission in PG course in terms of aforesaid Policy. Though
stand of the respondent State is that once it has spent huge amount to give opportunity to its doctors to do PG, they are under obligation to serve the
State for some time so that money spent thereupon is compensated but if the aforesaid condition of mandatory service of four/five years before
seeking admission in super-specialty course is invoked/pressed, in case of candidates who want to pursue super -specialty courses, very purpose and
object of the policy shall be defeated. As has been observed herein above, very purpose and loud object of policy is to provide super-specialists to the
public at large, which otherwise is/are required to be provided at the first opportunity. In case post-graduates are made to wait for five years, to apply
for super-specialty course, it is not only State which would be deprived of services of super-specialists for some time. Candidate seeking admission in
super-specialty course would also lose opportunity to have admission in super-specialty course at the first opportunity.
This court cannot lose sight of the fact that it is always easy to have education in continuation. Once break comes in education, it is always
difficult to retrieve such rhythm/zeal and same may be lost forever. Say an in-service candidate gets an opportunity to do PG course at the age of 30,
he would require three years to complete post-graduation course, that means, he would be post graduate by 33 and in case, he is made to render
mandatory service of five years before seeking admission in super-specialty course, in terms of bond executed ay him /her at the time of admission to
post graduation course, he/she would turn 38 by which time, he/she shall neither have the enthusiasm to study nor the capacity to put in hard work and
as such, very object and purpose of policy to provide better education to its doctors are defeated.
To the contrary, if a person after having completed his post graduation is permitted to pursue super-specialty course he/she would not only become
super-specialist after 7-8 years of his having taken admission in PG course, rather, he/she would be more enthusiastic and capable of honing his
professional skills. But if a post-graduate is made to wait for 4- 5 years, to apply for super-specialty course in terms of policy formulated by the
Government, he would not only become overage but it would be difficult for him to concentrate on account of his/her domestic responsibilities.
With the formulation of the Policy there is louder purpose to be achieved, inasmuch, in-service candidates, on attaining higher academic
achievements, would be available to be posted in rural areas by the State Government. It is not that an in-service candidate would leave the service
merely on account of having secured a PG degree or diploma though secured by virtue of being in the service of the State Government. To alley the
same, there is a provision of execution of bond, whereby candidate pursuing PG and super-specialty course is under obligation to serve the State
Government for some particular period. But as has been held by Apex Court, period of mandatory service and amount of bond conditions are to be
reasonable. If period of mandatory service and amount of bond are reasonable, there is perceptible reasonable nexus between the classification and
the object sought to be achieved. . In-service candidates, and the candidates not in the service of the State Government, are two classes based on an
intelligible differentia. An in-service candidate may be away from theories but still he needs to be assessed as eligible for PG and super-specialty
courses so that he updates himself regularly and thereafter serves the public at large with advanced education and latest technology. Reliance is
placed upon State of M.P. v. Gopal D. Tirthani (2003) 7 SCC 83, wherein Hon'ble Apex Court has held as under:
“21. To withstand the test of reasonable classification within the meaning of Article 14 of the Constitution, it is well settled that the classification
must satisfy the twin tests: (i) it must be founded on an intelligible differentia which distinguishes persons or things placed in a group from those left out
or placed not in the group, and (ii) the differentia must have a rational relation with the object sought to be achieved. It is permissible to use territories
or the nature of the objects or occupations or the like as the basis for classification. So long as there is a nexus between the basis of classification and
the object sought to be achieved, the classification is valid. We have, in the earlier part of the judgment, noted the relevant statistics as made available
to us by the learned Advocate-General under instructions from Dr Ashok Sharma, Director (Medical Services), Madhya Pradesh, present in the
Court. The rural health services (if it is an appropriate expression) need to be strengthened. 229 community health centres (CHCs) and 169 first-
referral units (FRUs) need to be manned by specialists and block medical officers who must be postgraduates. There is nothing wrong in the State
Government setting apart a definite percentage of educational seats at postgraduation level consisting of degree and diploma courses exclusively for
the in-service candidates. To the extent of the seats so set apart, there is a separate and exclusive source of entry or channel for admission. It is not
reservation. In-service candidates, and the candidates not in the service of the State Government, are two classes based on an intelligible differentia.
There is a laudable purpose sought to be achieved. In-service candidates, on attaining higher academic achievements, would be available to be posted
in rural areas by the State Government. It is not that an in-service candidate would leave the service merely on account of having secured a
postgraduate degree or diploma though secured by virtue of being in the service of the State Government. If there is any misapprehension, the same is
allayed by the State Government obtaining a bond from such candidates as a condition precedent to their taking admission that after completing PG
degree/diploma course they would serve the State Government for another five years. Additionally, a bank guarantee of rupees three lakhs is required
to be submitted along with the bond. There is, thus, clearly a perceptible reasonable nexus between the classification and the object sought to be
achieved.â€
As has been stated herein above, there cannot be any quarrel with the authority of the respondent State to compel/ask candidates seeking
admission to various streams of medical sciences to execute bond undertaking therein to serve the State for a specified period and in default to pay
some amount, after completion of diploma/degree/super-specialty course, but period of mandatory service and amount of bond cannot be
unreasonable.
In the case at hand, period of mandatory service provided under Clause 6.1, by no stretch of imagination can be said to be reasonable and as such,
same deserves to be reduced to two years, as has been directed by Apex Court in judgment supra. If it is so, petitioners herein who have served the
State for more than two years after their having completed PG course, are entitled to be granted NOCs for pursuing super-specialty courses in
autonomous institutions like AIIMS and PGI Chandigarh.
Though it is the domain of respondent-State to incorporate or delete conditions in Policy regulating admissions to PG and super-specialty courses
but having taken note of Clause 4.3 of 2017 Policy, this court wishes to observe that the respondent-State while refixing the mandatory period of
service in terms of Clause 6.1 may also consider incorporating condition that in case GDO is selected for doing second PG course and super-specialty
course during bonded period of service, he/she shall have to serve earlier period in addition to the bonded period of PG and super-specialty courses. In
the case at hand, petitioners have categorically stated before this court that once they are permitted to pursue super-specialty course, they shall serve
the State for seven years in terms of bond to be executed by them, pursuant to their admission in super-specialty course in addition to mandatory
service they are /were required to render in terms of bond executed by them, at the time of admission to PG course.
It is not the case of respondent State that in case the petitioners and other similarly situate persons are sent to pursue super-specialty courses,
there would be none to serve the general public. In the short reply filed to the petition, respondents have simply stated that sponsorship is a special
policy of the Government in a bid to improve specialist/super-specialist services in the State and further to provide best possible medical facilities to the
people in the largest interests of the patients. It has been further averred in the reply that the intention of the policy makers behind keeping provisions
for mandatory service is also to ensure the uninterrupted service of specialists in the State in the larger public interest. It is not mentioned in the short
reply that at present no doctors are available in the specialties, where petitioners are rendering their services as post graduates and in case they are
sent for pursuing super-specialty courses, public at large would suffer rather, this court is of the view that once the petitioners who are brilliant, are
provided an opportunity to pursue super-specialty courses, they would be an asset to the State, and as has been undertaken by them, they would serve
the State for the requisite bond period.
This court can take judicial note of the fact that there is dearth of doctors in the state of Himachal Pradesh. What to talk of super-specialists,
hospitals like IGMC and Dr. RPGMC, Tanda do not have the adequate faculty to serve the public at large. Besides above, respondent-State has
opened five new colleges, which are being run by the faculty appointed on contract basis and as such, it would be expedient and in the interest of
public at large, that more and more doctors are sent for super-specialty courses so that people of the State are not compelled to go to Chandigarh or
Delhi for their medical treatment.
Once the writ petitioners are allowed to improvise and galvanize their skills , the State would be immensely benefited. It is not in dispute that all the
petitioners herein have competed on all India basis and have secured higher positions in merit list of their respective fields, that too in premier
institutions like AIIMS and PGI and as such, it would be sheer injustice to the petitioners in case, they are not allowed to join pursuant to the conditions
contained in the 2019 Policy, which otherwise appear to be totally contrary to the object sought to be achieved by the Policy. Moreover, it has come to
the notice of the court that the respondent-State, while considering applications for grant of NOCs, has not been very fair rather, has adopted a pick
and choose method. In case of certain candidates, who had approached this court and who were granted permission to participate in the examination,
respondent-State has already given permission and those candidates on the basis of such permission(s) are already pursuing super-specialty and PG
courses and as such, it would not be fair in case the petitioners, who being extremely brilliant got admission in premier institutions, are denied
opportunity to take admission in AIIMS/PGI.
Consequently in view of the detailed discussion made herein above, though this court sees no reason to interfere with the 2019 Policy formulated
by the State of Himachal Pradesh for regulating admissions to various PG/super-specialty courses within and outside State, as a whole, but for the
condition of mandatory service of the State for 4/5 years as provided in Clauses 6.1 and 11.1.2 of the 2019 Policy, qua which this court directs the
respondent-State to amend the same by reducing the mandatory period of service from four/five to two years by making appropriate amendment(s) in
Clauses 6.1 and 11.1.2 of the 2019 Policy, strictly in compliance with judgment of Apex Court in Assn. of Medical Superspeciality Aspirants &
Residents v. Union of India, 2019 8 SCC 607. Ordered accordingly.
Since in these petitions, all the petitioners have completed two years bonded service under the State, they are held entitled to be issued
NOC/sponsorship for undergoing PG/super-specialty courses in the respective institutions, which shall be issued in their favour, positively on or before
20.7.2021.
All the petitions stand disposed of in the afore terms, alongwith all pending applications.