Dr. Rajesh Kumar Verma And Others Vs State Of H.P. And Others

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Judgment

383 paragraphs · 8,103 words

Jiya Lal Bhardwaj, J

Since common questions of law and facts are involved in both these petitions, they are taken up together for final disposal.

For the purpose of adjudicating the claim in the petition, the facts of CWPOA No.1842 of 2019 are mentioned in detail.

The petitioner has prayed for the following substantive reliefs:-

"(i) Issue a writ of certiorari or direction in the nature of writ of certiorari quashing/setting aside order No. Health-A-B

(12)2/2006 dated 10.11.2010 issued by the Department of Health & Family Welfare Government of Himachal Pradesh, Annexure P-15.

(ii) Issue a writ of Mandamus or direction in the nature of writ of Mandamus restraining respondents from proceeding further against the petitioner on the basis of order No. Health-A-B (12)2/2006 dated 10.11.2010 issued by the Department of Health & Family Welfare Government of Himachal Pradesh, Annexure P-15.

(iii) Issue a writ of Mandamus directing the respondent State to permit the petitioner to continue to as a serve Respondent State Regular Medical Officer and treat him such as for all intents and purposes."

The facts as emerge from the pleadings are that the petitioner (Dr. Rajesh Kumar Verma) obtained the degree of Bachelor of Medicine and Bachelor of Surgery (in short MBBS) from the Himachal Pradesh, University in the year 2002. This course has been done from Indira Gandhi Medical College, Shimla. After completing the degree, he was offered appointment on 30.01.2004 as Medical Officer (contract basis). The petitioner belongs to the Schedule Tribe category. As per recommendations of the Screening Committee constituted for regularization of the services of adhoc/contractual Medical Officers in the Directorate of Health Services Himachal Pradesh, his services were regularized vide memo dated 05.03.2007 in the pay-scale of Rs.7880-220-8100-275-10300-340-12000-375-13500/-. Before regularizing the services of the petitioner, who was appointed as Medical Officer on contract basis, he had applied for the Post Graduate Degree Entrance Examination. Pursuant to the second Counseling held on 23.04.2007 (Annexure P-3), he was allotted the seat of Post Graduate Degree/Diploma Course in MD Anaesthesiology. The petitioner submitted his Departure Report mentioning therein that he has been selected for PG Course (MD, Anaesthesiology) with the commencement of Academic Session w.e.f. 02.05.2007. Thereafter, the petitioner moved an application for granting him permission to pursue the above course through proper channel on 23.06.2007 (Annexure P-5).

Later on, the petitioner submitted an application on 19.06.2008 (Annexure P-6) before respondent No.1 to consider him as General Duty Officer (GDO), since he had completed three years of rural service on 30.01.2007. Respondent No.1, granted the EOL and allowed him as GDO for pursuing MD Anaesthesia & Intensive Care course from IGMC, Shimla vide order dated 07.07.2008 (Annexure P-7). However, later on it came to the notice of respondent No.1 that the petitioner had joined against the direct quota seat in PG Course and subsequently applied for treating him as a in-service candidate, whereas as per condition laid down in Para-3.11 (iii) of the prospectus (MD/MS Degree/Diploma Course) for the Session 2007-09/2010, the candidates, working on regular/adhoc/contract basis and did not possess the requisite qualifying service were required to tender resignation on their selection before seeking admission in PG Degree and thus, issued show cause notice dated 06.07.2010 (Annexure P-10) to the petitioner that why the benefit of treating him as an in-service candidate, on the basis of his regularization on 05.03.2007, be not withdrawn.

The petitioner replied to the said show cause notice on 21.07.2010 (Annexure P-12) stating that while working as Medical Officer (contract basis), he had applied and appeared as direct candidate in P.G. Entrance Examination and was selected during second counseling held on 23.04.2007 and joined PG Degree Course on 30.04.2007 and not on 19.03.2007. Before joining, the petitioner submitted his Departure Report to Block Medical Officer, Taunidevi on 30.04.2007 and submitted a bond of Rs.15,00,000/- to serve the Government of Himachal Pradesh for 15 years. On 23.06.2007, the petitioner had made a representation to respondent No.1 for permission to pursue MD Course as in-service candidate because of regularization of his services w.e.f. 05.03.2007. Again on 19.06.2008, he made a representation to consider him as GDO, since he had completed three years rural service on 30.01.2007, well before admission in PG Course and further his services were regularized on 05.03.2007. As a result of this, the petitioner was granted EOL on 07.07.2008 and allowed as GDO for doing MD, Anaesthesia and intensive care course from IGMC. Later on, another petitioner, namely, Dr. Ajay Jaryal (second petitioner in connected petition), who joined MD, Medicine through All India Quota has been granted all the benefits (including financial benefits) of a GDO and was allowed to draw his regular salary from Directorate of Health Services, and on that analogy, the petitioner had applied for the grant of financial benefits on 07.11.2008 and once again citing the example of Dr. Ajay Jaryal. Consequent upon which, approval of the Government was accorded to grant him financial benefits at par with Dr. Ajay Jaryal vide Office Order dated 25.11.2008.

Respondent No.1 on receipt of the reply given by the petitioner, passed an order on 10.11.2010 holding that the petitioner had appeared as direct candidate in PG Entrance Examination and was selected against Direct Quota Seats and no Government servant can join PG Course without resigning from the previous assignment (post) unless sponsored for the purpose, therefore, his services were required to be terminated and the consequential benefits accrued were to be withdrawn/recovered. Therefore, respondent No.1 in exercise of the powers vested under CCS (Temporary Services), Rules, 1965, terminated the services of the petitioner w.e.f. 18.03.2007, i.e. from the date he left the Department to join the PG Degree Course.

The petitioner feeling aggrieved by the order dated 10.11.2010 passed by respondent No.1 has assailed the same before this Court on the grounds inter-alia that the order is wrong, illegal, unconstitutional and violative of the principles of natural justice. The order under challenge has been passed in a hasty manner inasmuch as the Authorities have not applied their mind at all. Once the petitioner had neither made any mis-representation to the respondents-State, nor concealed anything from the State, which led the grant of permission by the State in his favour that he be treated as in service candidate for the purpose of pursuing his Post Graduation, the impugned order is unsustainable in law. Had the State not assured the petitioner and granted him permission to pursue the Post Graduate Course as in-service candidate, at that juncture, he would have taken steps to opt for other career. Now, at this stage, when the petitioner has applied for PG Course as inÂ¬service candidate, the respondents cannot withdraw the permission that was granted in his favour in the year 2007 and on that pretext, terminated the petitioner from regular service. The regular employee cannot be terminated, in a manner, as has been done in the present case by the respondents-State. Termination of service is a major penalty and even the Constitution of India provides safeguards. The petitioner had unblemished service record. The reasons assigned in the order that the State is apprehending many similar cases and, therefore, to avoid this, the services of the petitioner have been terminated, cannot be made basis. The decision of the State to treat the petitioner as in service candidate cannot be faulted with, once the petitioner was selected in the second counseling held on 23.04.2007 and joined the PG Degree Course on 30.04.2007. The petitioner also mentioned the names of other Doctors, who are similarly situate and have been extended the benefits. The termination and recoveries effected are absolutely illegal, unjustified and on account of total violation of the Policy and settled law.

The respondents-State filed reply to the petition and averred that the petitioner while working as a Medical Officer on contract basis, had applied and appeared as direct candidate in the Post Graduate Entrance Examination, conducted by the Himachal Pradesh University without obtaining "No Objection Certificate" from the Department. At the relevant time, the petitioner was not eligible, as in-service candidate, as he had not rendered the requisite service in the Health Department as per Policy of the Government. The petitioner was selected as a direct candidate for Post Graduation in Anaesthesiology in I.G. Medical College, Shimla. At the time of submitting his application for the PG Entrance Examination, the petitioner was not eligible to apply as in service candidate as he was not a regular employee on that date as per the requirement of the Policy at the relevant time. No doubt, as per communication dated 07.07.2008, the respondents-State had decided to treat the petitioner as in service candidate for pursuing MD, Anaesthesiology, but later on, on re-examination, it was found to be erroneous in view of the conditions laid down in Para-3.11 (iii) of the Prospectus for MD/MS Degree/Diploma Courses for the session 2007-09/2010, according to which, the candidates working on regular/adhoc/contract basis, who did not possess the requisite qualifying service were required to tender resignation on their selection before seeking admission in PG Degree. On the date of submission of application for the Post Graduation Course, the petitioner was a contractual employee and his services had not been regularized. Further, the petitioner had appeared as a direct candidate in the examination for Post Graduation Course; and was selected against direct quota seats; and as such he could not have joined PG course without resigning from the previous assignment, therefore, the benefits extended to the petitioner had been withdrawn after affording an opportunity to explain his position. The said erroneous benefits extended to the petitioner and other Doctors, who had done Post Graduation in the Sessions 2007-09/2010 and prior to it also started putting their claims and the matter as such was re-examined at the Government level and it was found that the petitioner had been extended the benefits wrongly.

10.

As per condition laid down in Para-3.6 of the Prospectus for Entrance Test for the Post Graduate Degree and Diploma courses for the session 2007-09/2010, the period of continuous regular service including adhoc/contract service was to be calculated right from the date of joining as HPHS-I till the last date fixed for receipt of application in the H.P. University. The last date for receipt of application at H.P. University was fixed as 08.01.2007 in the Prospectus. The petitioner was working as Medical Officer on contract basis w.e.f. 30.01.2004 and on 08.01.2007, i.e. the last date of the receipt of application form, he was a contractual employee and his services had not been regularized. The services of the petitioner were regularized on 05.03.2007 and as such, he could not have been treated as in-service candidate as he did not possess the requisite qualification on 08.01.2007. Apart from it, since the petitioner had been selected as direct candidate, he was required to submit his resignation before joining the said course. Since the petitioner was not eligible as in-service candidate, as he had not rendered the requisite service as per conditions laid down in Para-3.11(iii) of the Prospectus for the year 2007-09/2010, thus, it was decided to terminate his services w.e.f. 18.03.2007 and the benefits extended in his favour as in-service candidate for doing P.G. may be withdrawn and recovery may be effected. Since the petitioner was only a contractual employee of the State Government, he was not eligible for grant of No Objection Certificate as per Rules, though he had not applied for the same. The petitioner before joining the said course was required to resign from the services of the State Government, as such his services have rightly been terminated in accordance with CCS (Temporary Service) Rules, 1965.

11.

Respondent No.3 had filed an application seeking his impleadment, which was allowed on 23.04.2014. After his impleadment, he filed his reply to the petition. Alongwith reply, he has also placed on record the Prospectus of Entrance Test for the Session 2007-09/2010 (Annexure R-3/1). In reply, it has been averred that admittedly, the petitioner was working on contract basis when he applied for the PG (MD/MS) Course. As per Prospectus, 50% seats of degree/diploma courses were set apart for All India Entrance Examination under Group-A vide para 3.1. Para- 3.2 deals with Group-B, whereunder 66.6% out of remaining 50% seats were set apart for in service regularly appointed (HPHS-1) H.P. Health Cadre candidates. The adhoc/contract service followed by regular service was also to count towards qualifying service under the said category. Rest 33.3% out of remaining 50% seats named direct seats were available for open competition from graduates of medical colleges from H.P. The petitioner was not eligible for selection against Group-B in service quota, hence he had applied for PG (MD/MS) Course against direct recruitment quota. The candidate, who was applying against direct quota was required to submit affidavit as per specimen provided in Appendix-III of the prospectus and the petitioner submitted requisite affidavit dated 02.01.2007 (Annexure R-3/2), conforming to the specimen provided in the prospectus (Annexure R-3/3). On the basis of merit against direct recruitment quota, the petitioner was allotted MD (Anaesthesiology) vide order dated 23.04.2007. As per prospectus in the specialty of Anaesthesiology, against State quota, there was only one seat available, which was meant for ST category against direct recruitment quota and no seat for in-service candidate was available. However, the petitioner instead of submitting his resignation, very cleverly submitted his alleged departure report dated 30.04.2007, (Annexure P-4) with the writ petition, wherein he did not disclose that he was selected for MD (Anaesthesiology) against direct recruitment quota and required to submit his resignation. Instead, he only stated that he had been selected for PG course (MD Anaesthesia) at Indira Gandhi Medical College Shimla with commencement of academic session w.e.f. 02.05.2007 and he is departing from his station to join the abovementioned course on 30.04.2007 (AN). He joined the aforesaid seat as a direct candidate on 30.04.2007. The petitioner could not have joined MD Anaesthesia on 30.04.2007 without submitting his resignation from his contract appointment. The petitioner after joining MD Anaesthesia on 30.04.2007 submitted a representation dated 23.06.2007, wherein he had stated that he was regularized on 05.03.2007 and had been selected for MD Anaesthesia course at IGMC Shimla vide selection letter dated 23.04.2007. He remained conspicuously silent with respect to his selection as a direct candidate and the stipulation that on joining as direct candidate, he was required to resign from his contract employment. He also did not disclose that he had joined MD course without submitting resignation in terms of his affidavit dated 02.01.2007. Thereafter, another representation was made on 19.06.2008, wherein he stated that he had joined as Medical Officer on contract basis on 30.01.2004 and was regularized on 05.03.2007 and that he was selected for MD Anaesthesia on 23.04.2007 against which seat he joined as on 30.04.2007 as direct candidate after duly informing the department. However, he had not mentioned regarding his affidavit dated 02.01.2007 and condition qua submitting resignation for joining the course in question. He made a request to allow him to undergo MD Anaesthesia as GDO and to continue him in government service. As per order dated 07.07.2007, the petitioner was granted EOL to pursue the MD Anaesthesia. Since the petitioner had joined as direct candidate in the said course, no question of granting him extraordinary leave arises as the same was not available to him. Had he been selected for the course in question as in-service candidate, he would have been treated on duty. As such, the order dated 07.07.2007 was averred to be illegal. When the fact regarding wrong regularization of the petitioner came to the notice of the department, he was issued the show cause notice dated 06.07.2010 calling upon him to explain as to why the benefit of in-service candidate erroneously given to him for doing PG course against direct quota, be not withdrawn. After considering the reply submitted by the petitioner, the respondents-State had passed order dated 10.11.2010 (Annexure P-15), terminating his services and further the benefit of in-service candidate given to him for doing PG course was withdrawn and ordered recovery from him.

12.

Respondent No.4 had also filed application seeking impleadment, which application was also allowed on 01.11.2017 by the learned Tribunal. This respondent also filed reply to the petition on similar lines as filed by respondent No.3.

13.

I have heard the learned counsel for the parties and also perused the record carefully.

14.

The undisputed facts are that the petitioner had applied for the post of P.G. Degree, in pursuance of the prospectus issued by the Himachal Pradesh University and the last date for submission of the application was 08.01.2007. It is also admitted fact that the petitioner had applied as direct candidate to the said post. It is also admitted that the petitioner had submitted an affidavit dated 02.01.2007 (Annexure R-3/2) and mentioned that he is working on regular, adhoc/contract basis as HPHS-I, but not possessing the qualifying service as defined under Clause 3.5. Further, he understands that his candidature will be considered as a direct candidate, in terms of Para 3.11(iii) subject to the condition that he shall resign from service in the event of his selection, failing which, he forfeits his claim for admission.

15.

Before delving on the issues raised in the petitions, it would be profitable to reproduce the relevant clauses of the prospectus for entrance test for Post Graduate Degree(MD/MS)(Annexure R-3/1), which are as under:-

ELIGIBILITY & DISTRIBUTION OF SEATS, RESTRICTION AND GENERAL

3.1 GROUP-A

(i) 50% seats of Degree and Diploma course as per the directions of the Hon'ble Supreme Court shall be filled through All India Entrance Examination conducted by All India Institute of Medical Sciences or any other body nominated by the Government of India from time to time. "The seats will go in accordance with the roster maintained for the purpose."

(ii) Criteria and method of selection to Post-Graduate Courses for Group-A is mentioned in the application form and Bulletin of information released by the All India Institute of Medical Sciences, New Delhi or any other body nominated by the Government of India from time to time as per Supreme court Judgment.

3.2 GROUP-B

(i) Out of remaining 50% seats, 66.6% will be filled by in-service regularly appointed (HPHS-1) Himachal Pradesh Health Cadre Candidates (Adhoc/Contract service followed by regular service will also be counted as qualifying service for the purpose of adrnission) and 33.3% seats. named direct seats will be available for open competition from amongst the graduates of Medical Colleges of Himachal Pradesh (Indira Gandhi Government Medical College, Shimla and Dr. Rajendra Prashad Govt. Medical College Kangra at Tanda) or bonafide Himachalis. children of H.P Government employees/employee of Autonomous Bodies wholly or partially financed by H.P Government getting admission to MBBS course through CBSE. or any other All India Entrance Examination in MCI/G.O.I. recognised medical colleges in India.

(ii) In case any seat in pre-and Para clinical departments remain unfilled in view of 3.2 (i) above, then in accordance with the recommendation of the Central Council for Health & Family Welfare as communicated vide Govt. of India Letter No. Z 16018/1/99-ME (PG) dated 14th May, 1999. Such seats shall be filled up from in-service candidates (on merit basis) of Govt. of Himachal Pradesh who otherwise fulfill minimum eligibility criteria, if otherwise permissible.

(iii) Candidates seeking admission must:-

(a) posses MBBS degree of Himachal Pradesh University or any other University recognised by Medical Council of India as provided at clasue (i) above. Internship should be completed at the time of last date of submission of application in the H.P. University.

(b) have obtained full registration either from Medical council of India or any of the State Medical Councils Certificate should be available at the time of admission.

3.4 Distribution of Degree and Diploma seats is reÂ¬distributed as mentioned below:

DEGREE COURSES

Total seats : 39

State Quota : 22 (General=17, Reserved=5)

All India Quota : 17

Sr.

No.

Name of

Specialty

No. of

seats (Existing)

AIQ

HPHS-1

Direct

Gen.

Anaesthesiology

Anatomy

Community Medicine

Forensic Medicine

General Medicine

Microbiology

Obst.& Gynaecology

Ophthalmology

Orthopedics

10.

Oto-rhino- Laryngology

11.

Pediatrics

12.

Pathology

13.

Pharmacology

14.

Physiology

15.

Radio-diagnosis

16.

Radiotherapy

17.

Dermatology Venerology and

Leprology

18.

General Surgery

Total

Î.Î'.: The committee deliberated for the distribution of seats to be sent to AIQ and to be kept for state. The Govt. of India vide letter No. U.12021/07/2005-MEC dated 6.2.2006 has desired that recognized seats or courses inspected for recognition are to be sent for AIQ. So 17 seats in degree courses and 6 seats in Diploma courses have been sent for AIQ. The balance 22 seats in degree and 8+2 Diploma seats have been kept for State Quota. The 2 Diploma seats in Orthopedics will be filled only if MCI's permission comes in time. So the Diploma seats in State Quota may be 8 or 10 depends on permission.

DIPLOMA COURSES

Total seats : 16

State Quota : 10 (General=8, Reserved=2)

All India Quota : 06

Sr.

No.

Name of

Specialty

No. of seats

AIQ

HPHS-1

Direct

Gen.

Anaesthisia (DA)

Clinical

Pathology (D.C.P.)

Forensic Medicine

Oto-rhino- Laryngology (D.L.O.)

Pediatrics (D.C.H.)

Radio-diagnosis (D.M.R.D.)

Orthopeadics**

Total

**Admission has been stopped by the MCI. Inspection has been carried out by report is still awaited. These seats will be filled if permitted by the MCI.

Note: The seats of D.O. has been stopped by the MCI.

"3.5 To qualify for admission to degree or diploma courses such regular HPHS-I candidates will be eligible who:-

i) are regularly appointed in the HPHS-I. However adhoc/contract service followed by regular services will be counted as qualifying service for the purpose of admission.

ii) candidates should have completed two years in tribal/difficult areas. Difficult areas shall be as defined vide Govt. of H.P. Deptt. of Personnel Instruction No. Per (AP-C)-B(9)-1/94 dated 22-06-1999 and subsequent instructions thereof if any.

iii) have competed three years in rural areas (which may or may not include tribal / difficult areas as notified by the Govt. and applicable to the departmental candidates from time to time). Rural Area shall be the area as defined/notified by the Government from time to time.

iv) He/she should have minimum 15 years of service left for superannuation after completion of PG Degree/Diploma course.

3.6 The period of continuous regular service including adhoc/contract service be calculated right from the date of joining as HPHS-I till the last date fixed for receipt of application in the Himachal Pradesh University.

3.7 (i) HPHS-I who has been selected and has successfully completed a diploma or degree course will not be eligible for applying again until he has served the State Government for five years upto the last date of receipt of the application forms in the H.P. University, i.e. 08.01.2007 after he/she has completed Diploma/Degree Course.

(ii) Provided that such qualifying service will not be necessary if an officer wishes to follow a degree after diploma course in the same specialty.

3.11 (i) xxxxx

(ii) xxxx

(iii) The candidates working on regular/adhoc/ contract basis and not possessing the requisite qualifying service as defined at

3.5 will be considered as direct candidates subject to the condition that they fulfill the conditions as laid down in 3.2 (i) and further they shall have to tender resignation at the time of their selection, failing which they shall not be allowed any admission.

Note: This affidavit must be attached with the application form."

16.

A perusal of Clause 3.4 clearly depicts that there were two seats in Anaesthesiology, out of which, one was to be filled-up from All India Quota and another as direct candidate belonging to the Schedule Tribe category. The petitioner belongs to Schedule Tribe category. There was no seat meant for in-service candidates. As per Clause 3.5, to qualify for admission to degree or diploma courses such regular HPHS-I, candidates will be eligible, who are regularly appointed in the HPHS-I and further the candidates should have completed two years in tribal/difficult areas. In the present case, the petitioner was admittedly not a regular appointee in HPHS- I. The petitioner was appointed on 30.01.2004 as Medical Officer on contract basis and thus, was not eligible since he was not regularly appointed to be selected, being a in-service candidate. As per Clause 3.6, the period of continuous regular service including adhoc/contract service was to be calculated right from the date of joining as HPHS-I till the last date fixed for receipt of application in the Himachal Pradesh University. As per Clause 3.7(i), the last date for receipt of application form was fixed as 08.01.2007. For applying as in-service candidate, one should have served for three years as Medical Officer on regular basis in rural area and two years in tribal area. In the case of petitioner, firstly he was not appointed on regular service; secondly, he had not completed three years service in rural area, since he was posted in rural area as Medical Officer; thirdly, he had not completed even three years' service on contract basis on the last date fixed to receive the application form as on 08.01.2007; fourthly, there was no seat for GDO i.e. in service candidate and thus, he could not have been applied as in-service candidate and further could not have been considered as GDO.

17.

So far as Dr. Ajay Jaryal is concerned, he was appointed as Medical Officer (contract basis) on 10.03.2005 and posted at Community Health Centre Bharmour, District Chamba, H.P., which is a tribal area. He too, had applied as direct candidate under general category for admission to Post Graduate Course since he had not firstly appointed as regular Medical Officer and secondly, even as per condition of two years service in Tribal area, he had only completed less than two years of service as on 08.01.2007, which was the last date fixed for receipt of application. As per Clause 3.5, to qualify for admission to degree or diploma courses, such regular HPHS-I candidates will be eligible, who are regularly appointed in the HPHS-I and further the candidates should have completed two years in tribal/difficult areas. In the present case, the petitioner Dr. Ajay Jaryal was admittedly not a regular appointee in HPHS-I. He was appointed as Medical Officer on 10.03.2005 on contract basis and thus, was not eligible since he was not regularly appointed to be selected, being an in-service candidate. As per Clause 3.6, the period of continuous regular service including adhoc/contract service was to be calculated right from the date of joining as HPHS-I till the last date fixed for receipt of application in the Himachal Pradesh University. As per Clause 3.7(i), the last date for receipt of application form was fixed as 08.01.2007. In the case of this petitioner, firstly, he was not appointed on regular basis; secondly, he had not completed even two years' service on contract basis on the last date fixed to receive the application form as on 08.01.2007 since he was serving in tribal area and thus, he could not have been applied as in-service candidate and further could not have been considered as GDO.

18.

It is also crystal clear from the prospectus issued by the Himachal Pradesh University that the entrance test for Post Graduate Degree (MD/MS) and Diploma Courses in Indira Gandhi Government Medical College, Shimla, H.P. for the session 2007-2009/2010 (Annexure R-3/1) no seat was meant for in-service candidates in the specialty of Anaesthesiology. No doubt, seat was meant to be filled-up as direct candidate from 50% seats to be filled-up under Group-B and 50% on All India basis, but since the petitioner had applied as a direct candidate and was selected, as such, he could not have been considered as in-service candidate when he did not fulfill the eligibilities as per the prospectus. The petitioners have not challenged the conditions of the prospectus and further, it is not their case that they fulfilled the terms and conditions of the prospectus. Therefore, both the petitioners could not have been considered as in-service candidates, especially when in one of the case, there was no seat for in-service candidate.

19.

Learned counsel representing the petitioners have vehemently argued that once the services of the petitioners were regularized vide office order dated 05.03.2007, subsequently, the respondents-State could not have passed the impugned order, terminating their services.

20.

It is relevant to mention that before passing the impugned order, the petitioners were given show cause notices, specifically mentioning therein that they were selected and joined against the direct quota seats in PG Degree courses and subsequently, applied for treating them as in-service candidate. No doubt, before their selection, their services were regularized, but once as per conditions laid down in the prospectus, only candidates working on regular basis were to be considered for doing the P.G Course as in-service candidates and both of them having been appointed on contract basis, did not possess the requisite qualifying service, they could not have been treated as in-service candidates. Even considering their service on contract basis too, both of them were not eligible to be considered as in-service candidates since they had not completed requisite number of years of service as mentioned above. Further, they were selected as direct candidates and were required to tender their resignations, on their selection before seeking admission in the P.G. Courses. However, both the petitioners did not do the same. In the case of Dr.Rajesh Kumar Verma, even there was no post meant for in-service candidate under State quota and thus no illegality can be found with the order passed by the respondents-State while terminating his services.

21.

Learned counsel for the petitioners vehemently argued that the authorities have not followed the principles of natural justice and the petitioners have not been heard, whereas they were issued the show cause notices before passing the impugned orders and after considering their replies, the orders have been passed. The plea taken by the petitioners that they had neither made any misrepresentation nor concealed any material facts and the respondents-State had passed the order of regularizing their service and thereafter have treated them as in-service candidates for the purpose of pursuing the Post Graduate Course and, therefore, their services, could not have been terminated, cannot be countenanced for the reason that the petitioners were not possessing the requisite qualifications to be treated as in-service candidate and once, it came to the notice of the respondents-State, the authorities were well within their competence to recall their orders and have rightly passed the order terminating the services of the petitioners and no illegality can be said to have been committed while passing the orders under challenge.

22.

Learned counsel for the petitioners have vehemently argued that once the petitioners were regular employees of the respondents-State, their services could have been terminated only after conducting regular enquiry and placed heavy reliance on the judgment of the Hon'ble Supreme Court in Civil Appeal No.13860 of 2024, titled, Manohar Lal vs. Commissioner of Police and others and the judgments passed by a Co-ordinate Bench of this Court in CWP No.617 of 2020, titled, Darshana Kumari vs. State of Himachal Pradesh and others and CWP No.15021 of 2024, titled, Geeta Devi vs. State of Himachal Pradesh and others. No doubt, the Hon'ble Supreme Court in Manohar Lal's case (supra) has held that the person shall be dismissed or removed or reduced in rank after an enquiry supplying the charges, if any, against him and giving a reasonable opportunity of being heard in respect of those charges. However, in the present case, since the respondents-State after putting the petitioners to notice regarding the wrong benefits granted to them, specifically mentioning therein that they had been selected and joined against the direct quota seats in P.G. Degree courses and were ineligible to be considered as in-service candidates, as per condition laid down in para 3.11 (iii) of the prospectus and further not tendering the resignation by them and not fulfilling the requisite regular service, since they were appointed on contract basis, to which, the petitioners had given their reply and not denying the said facts, there was no necessity to hold the regular enquiry. The regular enquiry was required in case the petitioners had denied the allegation in the show cause notice. There version was only that their services were regularized and thereafter they have been permitted to pursue the MD course. Further, similar situate persons were granted the benefits as GDO i.e. in-service candidate after selection. Both the petitioners had not denied the fact that they were not eligible to be treated as in-service candidate and in case of Dr. Rajesh Kumar Verma, there was not even the seat for GDO. So far as grant of benefit on similar lines to others is concerned, that cannot be a ground to take action once the petitioners were not fulfilling the conditions of the Prospectus, otherwise, the very purpose of issuing the prospectus and laying down the conditions is frustrated. The respondents-State have not declared their degree of MD as void and the petitioners have been terminated form the service as Medical Officer only.

23.

The another judgment passed by a Co-ordinate Bench of this Court is also not attracted to the facts of the present case on the ground that in that case, there was violation of principles of natural justice. However, in the present case, before terminating the services of the petitioner, on the basis of facts stated above, they were put to notice and when the reply submitted by them was not found to be satisfactory and the petitioners did not dispute their ineligibility to be considered as in-service candidate, no illegality can be found in the orders passed by the respondents-State while terminating their services and also to recover the benefits illegally taken by them.

24.

Learned counsel for the petitioners have vehemently argued that since there was no misrepresentation on their part and further their services were regularized before considering them as in-service candidates, the respondents-State cannot back out from the said decision. Once it is crystal clear from the documents placed on record that the petitioners were not eligible to be considered as in-service candidate, even if the order of regularization was made, it cannot give them premium to stake claim to have pursued their P.G. Course as in-service candidate.

25.

Learned counsel for the petitioners further argued that once the respondents have granted the same benefits to others, where the persons were selected as a direct candidates, but they have been treated as in-service candidate, cannot advance their claim for the reason that if some illegality has been committed by the respondents-State in the past, the same cannot be permitted to be perpetuated. Once, as per the scheme of the prospectus, the petitioners were not fulfilling the requisite qualifications to be considered as in-service candidate, they could not have been allowed to reap the fruits under the said category. As already mentioned above, in the case of Dr.Rajesh Kumar Verma, there was no seat for in-service candidate to be filled-up in the respondents-Department and, therefore, the decision taken by the respondents-State to consider him as in-service candidate was in violation of the terms and conditions of the prospectus and, therefore, the respondents-State had rightly passed the order, terminating his services. It is settled law that party cannot claim negative parity.

26.

Learned counsel for the petitioners contended that in case the respondents-State had not taken a decision to regularize their services and further not granted permission to them to pursue the P.G. Course as in-service candidate, they could have taken other course of action. In this regard, it is relevant to mention that though the services of the petitioners were regularized vide office order dated 05.03.2007, but both of them have been selected thereafter as a direct candidate. Both of them had joined the P.G. Course as direct candidates and later on, their services were considered as inÂ¬service candidates and thus the plea raised by the petitioners that they could have adopted to take another course is not tenable. The petitioners were well aware about the fact that they were selected as direct candidates and, therefore, could not have been allowed to reap the fruits to be gained by the in-service candidates. The petitioners had approached this Court and got the interim protection. They had been terminated from service immediately after completion of their M.D. Course. Rather than approaching this Court, they could have applied somewhere else and on the strength of interim order, they cannot be allowed to continue in service.

27.

Learned counsel for the petitioners has also laid emphasis on the ground that though in the reply the respondents-State have stated that all those cases will be revised where the benefits have illegally been granted, as granted to the petitioners, but till date, no action has been taken. The petitioners have to stand on their own legs. Once the petitioners have been selected as direct candidates and further during the period of pursuing their P.G. Course, they had filed application(s) to treat them as in-service candidates, which request was wrongly accepted by the respondents-State, which mistake has been rectified, it cannot be said that the order passed by the respondents-State is illegal and bad in law.

28.

Learned Senior Counsel for the private respondents has supported the decision. He has placed reliance on the judgment of the Hon'ble Supreme Court passed in Amarjeet Singh and others vs. Devi Ratan and others (2010) 1 SCC 417 and submitted that the petitioners by mere pendency of the case and on the strength of interim order, cannot derive any benefits, since they were not eligible to be considered as in-service candidate and, therefore, no fault can be found with the order passed by the respondents-State, terminating their services and ordering for recoveries. The relevant para of the judgment reads as under:-

"17. No litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting interim order and thereafter blame the Court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed. The maxim "Actus Curiae neminemgravabit", which means that the act of the Court shall prejudice no-one, becomes applicable in such a case. In such a fact situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised, as institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the Court. (Vide Shiv Shankar &Ors. Vs. Board of Directors, Uttar Pradesh State Road Transport Corporation & Anr., 1995 Suppl. (2) SCC 726; M/s. GTC Industries Ltd. Vs. Union of India &Ors., AIR 1998 SC 1566; and Jaipur Municipal Corporation Vs. C.L. Mishra, (2005) 8 SCC 423"

29.

Learned Senior Counsel also placed reliance upon the judgment of the Hon'ble Supreme Court in Basawaraj and another vs. Special Land Acquisition Officer and connected matter, (2013) 14 SCC 81 to contend that even if the benefits have wrongly been extended to other employees, the petitioners cannot claim parity. It is settled law that the person who comes to the Court, cannot claim negative parity. As already held above, even if the wrong benefits have been granted to other similarly situate persons, the petitioners cannot take any advantage of the said decision of the State Government. The relevant para of the judgment is reproduced hereunder:-

"8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/ benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a Judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. (Vide: Chandigarh Administration & Anr. v. Jagjit Singh & Anr., AIR 1995 SC 705, M/s. Anand Button Ltd. v. State of Haryana &Ors., AIR 2005 SC 565; K.K. Bhalla v. State of M.P. &Ors., AIR 2006 SC 898; and Fuljit Kaur v. State of Punjab, AIR 2010 SC 1937)."

30.

Learned Senior Counsel for the private respondents has also placed reliance on the judgment of the Hon'ble Supreme Court in United India Insurance Co. Ltd. vs. Sayona Colors Pvt. Ltd. 2026 SCC Online SC 484 and contended that once the petitioners have committed fraud, the entire edifice of the claim collapses and no relief can be granted. In the present case, as mentioned above, once the petitioners were ineligible to be considered as in-service candidates, as per terms of the prospectus and guidelines issued by the State Government, even if the respondents-State had granted the permission to treat them as in-service candidate, though in one of the cases, even the post was not meant for in-service candidates, no relief can be granted to the petitioners. The relevant paras of the judgment read as under:-

"20. It is a settled principle that fraud vitiates all solemn acts, and no person can be permitted to take advantage of his own wrong. In S.P. Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1, this Court held that a judgment or decree obtained by playing fraud is a nullity in the eyes of law. Similarly, in A.V. Papayya Sastry v. Government of Andhra Pradesh (2007) 4 SCC 221, it was reiterated that fraud vitiates all judicial acts, whether in rem or in personam.

21.

Applying the aforesaid principles, we are of the considered view that once it is established that the claim itself is founded on fraud, the entire edifice of the claim collapses and no relief can be granted. Quantification of loss cannot override the foundational requirement of a genuine and bona fide claim.

22.

There is no concept of partial or equitable relief in cases tainted by fraud. Courts and adjudicatory fora cannot grant compensation merely because some loss is shown to have occurred, when the claim itself is vitiated by fraudulent conduct. An insurance contract cannot be used as an instrument of unjust enrichment. The NCDRC therefore, fell into error in awarding Rs.3,33,63,642/- (Rupees Three Crores Thirty Three Lakhs Sixty Three Thousand Six Hundred and Forty two) towards the alleged loss sustained by the respondent."

31.

Learned Senior Counsel for the private respondents has also placed reliance on the judgment of the Hon'ble Supreme Court in Jyostnamayee Mishra vs. State of Odisha and others 2025 SCC Online SC 117 to contend that if the similarly situate persons have been granted some relief inadvertently or by mistake, such an order does not confer any legal right upon others to get the same relief. If the wrong is committed in an earlier case, the same cannot be perpetuated. The relevant paras of the judgment are reproduced as under:-

"30. Though, the claim of the petitioner has been rejected on the ground that she is not eligible for the post of Tracer, however, we need not enter into that arena for the reason that as per 1979 Rules, the post of Tracer is to be filled up to 100% by way of direct recruitment in terms of Rule 5(1)(e) of the 1979 Rules and the method of direct recruitment has been provided in Rule 7 thereof. Undisputedly, the process as provided in the Rules was not followed. The post of Tracer, not being promotional post from the post of Peon, there is no merit in the claim of the petitioner.

31.

Another argument was raised while referring to two communications dated 28.06.1999 appointing Ms. Jhina Rani Mansingh and Sri Lalatendu Rath as Tracer on promotion, claiming to be from the post of Peon, on the basis of which the petitioner is claiming violation of Article 14, namely the discrimination. Suffice to add, this Court cannot put a stamp on the illegalities committed by the department while perpetuating the same. A litigant coming to the Court cannot claim negative discrimination seeking direction from the Court to the department to act in violation of the law or statutory Rules. It is a settled proposition of law that Article 14 does not envisage negative equality. Reference for the purpose can be made to a judgment of this Court in R. Muthukumar & others v. The Chairman and Managing Director TANGEDCO. Relevant para thereof is extracted below:

"28. A principle, axiomatic in this country's constitutional lore is that there is no negative equality. In other words, if there has been a benefit or advantage conferred on one or a set of people, without legal basis or justification, that benefit cannot multiply, or be relied upon as a principle of parity or equality. In Basawaraj v. Special Land Acquisition Officer, this court ruled that:

32.

For the reasons mentioned above, we do not find merit in the present petition and the same is accordingly dismissed."

32.

Since in the present case, the petitioners were not fulfilling the requisite conditions to be considered as in-service candidates, no fault can be found with the order passed by the respondents-State, whereby the services of the petitioners have been terminated and further recoveries have been ordered.

33.

Consequently, I do not find any merit in these petitions and the same are accordingly dismissed. However, there shall be no order as to costs. Pending applications, if any, also stand disposed of.

Dr. Rajesh Kumar Verma And Others vs State Of H.P. And Others

Judgment