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Judgment
Sandeep Sharma, J
Precisely, the question, which has arisen for adjudication in the case at hand, is “Whether communication dated 9.10.2020 (Annexure P-10) is a
clarification on the definition of “Field posting†in context of Post Graduate/Super Specialty Policy and Resident Doctors Policy notified vide
Notification HFW-B(F)4-9/2017-II, dated 27.2.2019 and HFW-B(B)1-10/2018, dated 22.6.2019 or in the garb of clarification, attempt has been made
by the respondents to modify/amend the definition of ‘Field posting’ and ‘Distribution of Marks’ prescribed vide notifications referred
hereinabove after commencement of selection process?
For having bird’s eye view, relevant facts crucial for exploring answer to aforesaid question are that on 27.2.2019, respondent-State notified
“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†(in short “PG/Super Specialty Policyâ€) (Annexure P-2).
Para 3.1.6 of this policy defines “Field posting†as under:-
“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.â€
It is quiet apparent from the aforesaid definition of ‘Field posting’ that the posting in various peripheral Health Institutions of State i.e.
Primary Health Centre, Community Health Centre, Civil Hospitals, District Hospitals, Zonal Hospitals and Regional Hospitals is to be termed as a
‘Field posting’, whereas teaching posts in Government Medical/Dental Colleges of the State stands excluded from the aforesaid definition of
‘Field posting’ save and except ‘Casualty Medical Officers and Medical Superintendents’ posted in Government Medical/Dental Colleges
of the State.
Vide notification dated 22.6.2019 (Annexure P-3) ‘Policy for Residency in the Government Medical Colleges in the State of Himachal
Pradesh’ (in short ‘Resident Doctor Policy’ ) came to be notified. As per second proviso to para 7.1 of aforesaid Policy, GDOs/Direct
Candidates having furnished bond to serve the State after Post Graduation in lieu of sponsorship/stipend are under obligation to serve for a period of
minimum one year in the ‘Field posting’ or any such period which may be prescribed by the PG/Super Specialty Policy as notified from time to
time to become eligible for Senior Residency in the State.
Vide Office Order dated 21.8.2019 (Annexure P-4), the definition of ‘Field posting’ came to be further clarified by providing that period
served by the candidates (GDOs/direct candidates) in the Government Medical Colleges of the State shall not be counted as mandatory ‘Field
posting’, with immediate effect. However, subsequently, vide Corrigendum dated 9.12.2019 (Annexure P-5), the words “with immediate
effect†mentioned in the 2nd last line of Department Office Order dated 21.08.2019 were deleted.
Subsequently, vide Notification dated 21.1.2020 (Annexure P-6), Notification dated 22.6.2019 was partially modified by excluding the “Casualty
Medical Officers†of Medical Colleges from the definition of ‘Field posting’.
In February, 2020, Principal, IGMC, Shimla-cum-Member Secretary, Counseling Committee, issued an advertisement inviting applications for the
posts of Senior Residents in Government Medical Colleges of the State. Though last date to apply in terms of aforesaid advertisement was 20.3.2020,
but in continuation to aforesaid advertisement, another advertisement dated 30.5.2020 was issued inviting applications for the posts of Senior
Residents/ Tutor Specialists in Government Medical Colleges of the State and this time last date for submission of application was fixed as 20.6.2020.
However, vide notification dated 23.6.2020 the selection process for Senior Residents/Tutors was cancelled till further orders due to administrative
reasons/decision taken in view of COVID-19 pandemic and it was informed that new schedule/date, would be intimated through the web site of DME
& R, HP and on College web site.
Pursuant to aforesaid advertisement dated 11.8.2020 (Annexure P-1) issued by Principal, IGMC, Shimla-cum-Member Secretary inviting fresh
applications for the posts of Senior Residents/Tutor (Specialists) in Government Medical Colleges of the State, petitioner as well as respondent No.4
alongwith other eligible candidates applied for the post of Senior Residents in Community Medicine.
Tentative merit list of candidates, who had applied for Senior Residency in Community Medicine came to be displayed on the website of
respondents No.2 in the last week of September, 2020 (Annexure P-8), wherein admittedly petitioner was shown to be eligible, whereas respondent
No.4 was declared as ineligible.
Though, on 8.10.2020, it was notified that counseling for Senior Resident in Community Medicine shall take place on 14.8.2020 but vide letter
dated 9.10.2020 (Annexure P-10), respondent-State clarified that all the GDOs, who are working under the offices of CMO/NHM, DHS and State
Health and Family Welfare Training Institutions at Parimahal and Chheb are covered under the new PG/Super-Specialty and Resident Doctor Policy,
so that the eligibility for Senior Residency of all those GDOs may be considered subject to fulfillment of other requirement as per PG/Super Specialty
Policy dated 27. 2.2019, Resident Doctor Policy dated 22.6.2019 and other regulations currently in force .
Petitioner though participated in counseling for Community Medicine, but respondent No.4, who was otherwise shown to be ineligible in the final
merit list was allotted first post in Community Medicine at IGMC ignoring the petitioner who admittedly was shown as eligible in final merit list
displayed on website by respondent No.2 on 8.10.2020.
Being aggrieved on account of selection of respondent No.4 against post of Community Medicine in IGMC, petitioner submitted representation
dated 14.8.2020 (Annexure P -11) to the Counseling Committee objecting to the inclusion of the name of respondent No.4 in the list of eligible
candidates for the post of Community Medicine on the basis of communication dated 9.10.2012 (Annexure P-10), pointing out that the decision taken
after selection process had commenced, would not apply for ongoing process, but, before decision, if any, could be taken on aforesaid representation,
petitioner apprehending that post of Senior Residency in Community Medicine in IGMC, would be offered to respondent No.4 on the basis of letter
dated 9.10.2020 approached this Court in the instant proceedings praying therein for following main relief(s) amongst others:-
“(i) That impugned amendment/modification of the definition of “Field posting’ for the purpose of Senior Residency already
occupying the field vide notification dated 27.2.2019 (Annexure P-2) read with notifications dated 22.6.2019, (Annexure P-3) and
21.1.2020 (annexure P-6), under the garb of alleged clarification dated 9.10.2020, Annexure P-10, without issuing proper executive
instructions, that too with retrospective effect, may kindly be quashed and set aside.
OR, in the ALTERNATIVE.
May be held prospective in nature so as to not affect the selection process initiated vide advertisement dated 11.8.2020, Annexure P-
1.â€
Having heard learned counsel representing the parties and perused the material available on record, especially clause 3.1.6 of the Policy, this Court
finds force in the contention of learned counsel representing the respondents that definition of ‘Field posting’ includes posting in various
peripheral Health Institutions of the State and as such, it cannot be concluded that respondent by issuing communication dated 9.10.2020 have made
an attempt to modify/amend the definition of ‘Field posting’ and “Distribution of Marks†prescribed vide notifications dated 27.2.2019 &
22.6.2019 (Annexures P-2 & P-3).
Though, in the case at hand, record reveals that an advertisement was issued in February, 2020 for the posts of Senior Residents in Government
Medical Colleges, but for administrative reasons, process initiated vide aforesaid advertisement could not be taken to its logical end and accordingly,
vide fresh advertisement dated 11. 8.2020, fresh applications came to be invited for the post of Senior Residents/Tutor Specialists in Government
Medical Colleges of the State. Though, last date for submission of applications was 1.9.2020, but before expiry of last date, as referred above
respondents vide Office Order dated 21.8.2019 (Annexure P-4) having taken note of various references received from concerned quarter clarified
that period served by the candidates (GDOs/direct candidates) in the Government Medical Colleges of the State shall not be counted as mandatory
‘Field posting’, meaning thereby, services being rendered by GDOs/direct candidates at that relevant time in Government Medical Colleges are
not be counted as mandatory ‘Field posting’, but otherwise definition of ‘Field posting’ as provided under clause 3.1.6 of PG/Super
Specialty Policy clearly provides that “Field posting’ would mean the posting in various peripheral Health Institutions of the State, meaning
thereby, respondent No.4, who after having completed Post Graduate Course in June, 2019 joined in the Office of Director of Health Services is/was
very much eligible to be considered against the post in question.
Clause 7.1 of the Resident Doctor Policy (Annexure P-3) provides that GDOs/Direct Candidates, who have furnished bond to serve the State
after Post Graduation in lieu of sponsorship/stipend, are required to serve for a period of minimum one year in field posting or any such period, which
may be prescribed by the PG/Super Specialty Policy as notified from time to time before becoming eligible for Senior Residency in the State. Clause
7.2.4 of the aforesaid Policy further stipulates that the Director Medical Education & Research, Himachal Pradesh shall send the list of all the
candidates (including GDOs and Direct candidates), who have applied for the post(s) to the Director Health Services, Himachal Pradesh for issuance
of No Objection Certificate with regard to the completion of the mandatory peripheral service and to scrutinize any discrepancy in status of a
candidate with respect to his/her being a GDO or a direct candidate.
In the case at hand, reply filed by respondents reveals that respondent No.4, after being declared ineligible in the tentative merit list, preferred
representation dated 6.10.2020 through proper channel to Government (Annexure R-2 Colly.), but before aforesaid representation filed by respondent
No.4 could be finally decided, respondent No.2 i.e. Director of Medical Education and Research, Himachal Pradesh, circulated the final merit list of
the candidates for Senior Residents on 8.10,2020 (Annexure P-9) showing the Private respondent No.4 ineligible for non-completion of mandatory one
year ‘Field postingâ€.
In the aforesaid background, respondent-State vide letter dated 9.10.2020 (Annexure P-10) reiterated and made it clear that teaching posts in
Government Medical Dental Colleges of the State shall be excluded from the definition of ‘Field posting’, whereas other Health Institutions of
the State Government are covered under the new Post Graduate/Super Specialty Policy.
In the aforesaid communication, respondent-Department to clarify the matter further specifically mentioned in the communication dated 9.10.2020
that provisions of Policies, as referred above, would be applicable to all the General Duty Officers (GDOs), working in the office of Chief Medical
Officer (CMO), National Health Mission (NHM), Director Health Services (DHS) and State Health and Family Welfare Training Institutions at
Parimahal and Chheb and as such, eligibility for Senior Residency of all those GDOs may be considered subject to fulfillment of other requirement as
per PG/Super Specialty Policy dated 27.2.2019 and Resident Doctor Policy dated 22.6.2019.
After issuance of aforesaid clarification, respondent No.4 Dr. Vineet Kumar, rightly came to be declared as an “eligible†candidate by
respondent No.2 for the post of Senior Resident in the Department of Community Medicine in IGMC, Shimla. Since private respondent No.4 Dr.
Vineet Kumar was at Sr. No.2 in the merit list, he rightly came to be allotted post of Senior Resident in Department of Community Medicine, IGMC,
Shimla as per his option. Record reveals that petitioner being ranked at Sr. No.3 in order of merit against two posts in IGMC, Shimla, could not be
offered post at IGMC, Shimla, but was offered post of Senior Resident at Hamirpur, but she remained unwilling to join against the said post at
Hamirpur.
Having carefully perused judgment dated 12.3.2020 (Annexure P-7) rendered by learned Single Judge of this Court in CWP No. 2888 of 2019, this
Court finds no force in the submissions made by Shri Dilip Sharma, learned Senior Counsel representing the petitioner, that since claim with regard to
the counting of service, rendered with Director Health Services after Post Graduation, was contested by respondent No.2-State in the aforesaid
petition, it is not open for respondent-State to take ‘U’ turn in the instant proceedings.
In the aforesaid petition, moot issue involved was “Whether denial of the benefit of “Field posting†to Medical Officers (Specialist) posted
in different Government Medical Colleges in the State of Himachal Pradesh is violative of Article 14 of the Constitution of India in view of the fact
that “Casualty Medical Officers (Specialist) posted in a Government Medical College are given the benefit of “Field posting†for serving as
such.
Having perused judgment, as referred above, this Court finds it difficult to agree with contention of Shri Dilip Sharma, learned Senior Counsel that
in earlier petition, stand of the respondent was that services rendered with Director of Health Services after Post Graduation cannot be termed to be
“Field posting†in terms of definition of ‘Field posting’ as provided in clause 3.1.6 of the PG/Super Specialty Policy. Otherwise also, learned
Single Judge, while disposing of aforesaid writ petition, left the following question open to be decided in subsequent proceedings i.e. “Whether
medical Officer can claim benefit of “Field posting†for the services rendered in Directorate, as prayed for?
During proceedings of the case, learned Senior Counsel representing respondent No.4 invited attention of this Court to the judgment dated
25.11.2020 rendered by learned Single Judge in CWP No.2101 of 2020 alongwith CWP Nos.3401, 3463 and 3786 of 2020, wherein it has been held
that candidates, who have completed one year service after completing their Post Graduation Course, shall be considered eligible for competing for the
post of Senior Resident, irrespective of the place where they have served as such, until and unless the petitioner was offered appointment at a place
which is termed as ‘Field posting’ and he/she refused to do so.
Mr.Dilip Sharma, learned Senior Counsel for the petitioner, while refuting aforesaid submissions made on behalf of respondent No.4, contended
that judgment as is being relied was ordered not to be treated as a precedent in future and as such, cannot be taken into consideration. However,
having carefully perused aforesaid judgment rendered by learned Single Judge, this Court finds that the petitioner in that case had laid challenge to the
Policy formulated by the State Government, providing therein one year’s mandatory ‘Field posting’. Mr. Dilip Sharma, learned Senior
Counsel representing the petitioner in that case submitted that posting of officers at a station is the prerogative of the employer and as such, condition
of one year’s mandatory service in an institution, which is designated as ‘Field posting’ is now becoming impediment in their case as far as
their eligibility to compete for the post of Senior Resident is concerned. Learned Single Judge, agreeing with the aforesaid argument advanced by the
petitioner in that petition, directed the respondent to consider the case of the petitioner qua the post of Senior Resident irrespective of the place where
they served prior to their applying to the post in question. In para-7 of aforesaid judgment, learned Single Judge while noting down the request of
learned Senior Additional Advocate General that judgment may not be treated as a precedent in future, has very carefully recorded that any future
litigation on the issue of validity of the policy of the State Government with regard to eligibility of a Medical Officer for competing to the post of Senior
Resident shall be decided on the merit of that particular case.
Leaving it aside, whether aforesaid judgment rendered by learned Single Judge has a bearing on the case at hand or not, this Court is of the view
that since clause 3.6.1 of the Policy ibid, issued prior to issuance of communication dated 9.10.2020 (Annexure P-10) specifically provides that posting
in various peripheral Health Institutions of the State would mean ‘Filed posting’, it cannot be concluded that respondents after commencement
of selection process vide communication dated 9.10.2020 (Annexure P-10) attempted to modify/amend the definition of ‘Field posting’, rather
vide aforesaid communication, respondents with a view to bring more clarity in the matter reiterated that all the GDOs working under the offices of
CMO/NHM, DHS and State Health and Family Welfare Training Institutions at Parimahal and Chheb are covered under the new PG/Super-Specialty
and Resident Doctor Policies. Similarly, no plausible explanation has been rendered on record to justify the action of respondents No.1 and 2, whereby
they ignored the NOC issued by Director of Health Services in terms of clause 7.2.4 of notification dated 22.6.2019 (Annexure P-3), which authorizes
the Director Health Services of Himachal Pradesh to issue NOC with regard to completion of mandatory peripheral service, if any, rendered by the
candidates aspiring for the post(s) at Government Medical Colleges. No plausible material worth credence has been led on record to justify the action
of respondent No.2 declaring respondent No.4 ineligible while issuing tentative and final merit list and as such, subsequent action of rectification of
mistake carried out by respondent No.2 by declaring respondent No.4 eligible after having received clarification from respondent-State cannot be held
to be illegal and cannot be interfered with. Mere issuance of final seniority list declaring the petitioner eligible and selected against the post in question
would not confer any right in favour of the petitioner, especially when it stands established on record that candidature of respondent No.4, who is
otherwise more meritorious than the petitioner was wrongly rejected by respondent No.2, ignoring NOC issued by Director of Health Services.
Consequently, in view of the detailed discussion made herein above, this Court does not find any merit in the instant writ petition and as such, the
same is dismissed accordingly. Pending application(s), if any, also stand disposed of.