Himachal Pradesh High Court
Between vs Dr. R.N. Bhatnagar And Another on 13 August, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 13TH DAY OF AUGUST, 2021
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
.
&
HON'BLE MR. JUSTICE SATYEN VAIDYA.
CIVIL WRIT PETITION No. 907 OF 2021
Between:-
DR. NIKITA VERMA
D/O DR. C.R. VERMA,
RESIDENT OF SHEETAL KUNJ ESTATE,
P.O. KAMLA NAGAR, SANJAULI,
SHIMLA - 171 006 (H.P.) ......PETITIONER
(BY SH. SUNIL MOHAN GOEL, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH,
THROUGH ADDITIONAL CHIEF SECRETARY (HEALTH)
TO THE GOVERNMENT OF HIMACHAL PRADESH.
2. DIRECTOR OF HEALTH SERVICES,
HIMACHAL PRADESH.
3. DR. SUNIL SHARMA, SON OF NOT KNOWN,
MEDICAL OFFICER SPECIALIST,
CHC NALAGARH, DISTT. SOLAN, (H.P.)
4. DR. CHARU SMITA THAKUR,
W/O DR. ARUN CHAUHAN, R/O SHIVAM REGENCY,
BLOCK e. FLAT NO. 8, KAMLANAGAR, BHATTAKUFFER,
SHIMLA - 171 006, PRESENTLY POSTED AS MEDICAL
OFFICER (RADIOLOGIST), DEEN DAYAL HOSPITAL, SHIMLA,
DISTRICT SHIMLA, H.P.
....RESPONDENTS.
::: Downloaded on - 31/01/2022 22:52:31 :::CIS
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(SH. AJAY VAIDYA, SENIOR ADDITIONAL ADVOCATE
GENERAL, FOR RESPONDENTS NO. 1 AND 2.
SH. DUSHYANT DADWAL, ADVOCATE, FOR RESPONDENTS
NO. 3 AND 4.).
RESERVED ON : 10.08.2021.
.
DECIDED ON : 13.08. 2021.
__________________________________________________________________
This petition coming on for orders this day, Hon'ble
Mr. Justice Satyen Vaidya, passed the following:
ORDER
By way of instant petition, petitioner has prayed for the
following substantive reliefs:
a)
That this Hon'ble Court may be pleased to issue writ of
certiorari quashing the letter dated 6.2.2021 (Annexure P-4)
whereby the post of Assistant Professors in the Department of
Radiology has been ordered to be filled up by way of promotion
and the necessary documents had been called from the
requisite heads and further Annexure P-4 letter dated
15.02.2021.
b) That this Hon'ble Court may further be pleased to issue writ of
mandamus directing the respondents not to fill up the post of
Assistant Professor in the Department of Radiology by way of
promotion, and be further directed to fill up the post of Assistant
Professor in the Department of Radiology IGMC, Shimla by way
of direct recruitment.
c) That this Hon'ble Court may be pleased to issue writ of
mandamus directing the respondent not to hold any DPC for
promotion to the post of Assistant Professor in the Department
of Radiology, IGMC, Shimla considering private respondent
No.3 and further not to recommend private respondent No.3.
2. The case of petitioner is that she is qualified to be
appointed as Assistant Professor in the Department of Radiology,
.
Indira Gandhi Medical College (for short 'IGMC'), Shimla, where
presently a post of Assistant Professor is vacant and available. As
per petitioner, she is M.D. Radio-diagnosis and has three years
teaching experience as Senior Resident at RPGMC, Tanda and PGI
(MER), Chandigarh.
3. The Medical Education and Research is one of the wings
of the Department of Health and Family Welfare, Government of
Himachal Pradesh and is headed by the Director, Medical
Education and Research. The teaching faculty of various Medical
Colleges in the State of Himachal Pradesh are under the
administrative control of the Director, Medical Education and
Research.
4. The Department of Medical Education and Research has
notified Himachal Pradesh Medical Education Service Rules, 1999
(for short 'Rules') which have been amended from time to time.
Annexure -1, appended to the Rules provides for Recruitment and
Promotion Rules (for short R&P Rules) for Himachal Pradesh
Medical Education Service. As per the R&P Rules for the post of
Assistant Professor (Class-I Gazetted) prescribed method of
recruitment is from two sources i.e., 50% by promotion failing
.
which by direct recruitment and 50% by direct recruitment in the
manner as specified in Appendix-B. Essential and desirable
qualifications for the post of Assistant Professor have been detailed
at serial No.3 of Appendix-B as under:
"3. Assistant Professor:
Essential qualifications: -
(i) A recognized medical qualification included in the first or
second Schedule or Part-II of the third Schedule (other
than Licentiato qualifications) to the Indian Medical
Council Act, 1956. Holders of Educational Qualification
included in Part-II of the Third Schedule should also fulfill
the condition stipulated in sub-section (3) of Section 18 of
Indian Medical Council Act, 1956.
(ii) A post-graduate degree in the concerned specialty
mentioned in Part-A of Annexure-II or its equivalent
qualifications.
(iii) Atleast 3 years teaching experience as
Lecturer/Registrar/Demonstrator/Resident after doing
post-graduation in the concerned specialty in any
recognized Medical College.
Desirable qualifications:- (i) Knowledge of customs,
manners and dialects of Himachal Pradesh and
suitability for appointment in the peculiar conditions
prevailing in the Pradesh.
(ii) Publication of research papers in Index Journals."
5. Presently, IGMC, Shimla has five sanctioned posts of
Assistant Professors in the Department of Radiology. After
promotion of Dr. Shikha Sood to the post of Associate Professor,
one post of Assistant Professor has fallen vacant in the said
Department. Remaining four sanctioned posts of Assistant
.
Professors are manned by different incumbents.
6. It is on account of the vacancy of one post of Assistant
Professor in the Department of Radiology, IGMC, Shimla that the
controversy has arisen. Respondents No. 1 and 2 have initiated the
process to fill the above noted vacant post of Assistant Professor in
the Department of Radiology, IGMC, Shimla by way of promotion.
7. Petitioner is aggrieved against the action of respondents
No. 1 and 2, whereby the process for filling up the vacant post of
Assistant Registrar in the Department of Radiology, IGMC, Shimla
by promotion has been initiated. Petitioner has questioned this
process by way of instant petition on the specific ground that, as
per the applicable R & P Rules vacant post of Assistant Professor
in the Department of Radiology, IGMC, Shimla is required to be
filled by direct recruitment. Petitioner being eligible for
appointment to the post in question intends to compete for the
same. According to petitioner, the method of recruitment as per
R&P Rules for the post of Assistant Professor in Himachal Pradesh
Medical Education Service is 50% by promotion, failing which by
direct recruitment and 50% by direct recruitment in the specified
manner. Contention of the petitioner is that out of first four
sanctioned posts, two were filled by promotion and two by direct
.
recruitment. 5th post was also filled by promotion, therefore, in
order to maintain the ratio of 50: 50 between promotes and direct
recruits, the post now sought to be filled, falls to the quota of direct
recruitment.
8. Respondents No. 1 and 2 in their reply have contested
the claim of petitioner on the ground that the Department of
Personnel, Government of Himachal Pradesh had issued letter No.
Per (AP-II) A(3)-2/80 dated 7th November, 2001 stating therein as
under
" 2. In some of the R & P Rules, a roster has been prescribed
against Col. No.11 which indicates post based points for filling
up of the posts keeping in view the method of recruitment
provided in Col. No.10. In the R & P Rules, the percentage for
filling up of the posts, as indicated against Col. No.2 of the
Rules, is given against Col. No.10 on the basis of the 'posts'
created for a particular category and not on the basis of
'vacancies' meaning thereby that vacancies occur against the
posts. As such, a confusion has arisen on the basis of wording
of Col. No. 10 of the standard proforma already circulated by
the Department of Personnel. Accordingly, the matter has been
considered in consultation with the Law Department. In order
to remove any ambiguity in this regard, it has been decided
that the wording of Col. No. 10 of the prescribed proforma for
framing of Recruitment and Promotion Rules may be
substituted as under:
Before Amendment
"Method of recruitment, whether by direct recruitment or by
.
promotion, deputation, transfer and the percentage of
vacancies to be filled in by various method."
After amendment
"Method of recruitment, whether by direct recruitment or by
promotion, deputation transfer and the percentage of posts to
be filled in by various method."
9. On the basis of above noted correspondence, respondents
No. 1 and 2 maintain that the applicable roster is to be concluded
on the "posts", meaning thereby the vacancy to be filled thereafter
shall be filled from the quota against which post had fallen vacant.
It has further been contended on behalf of respondents that the
vacant post of Assistant Professor in the Department of Radiology,
IGMC Shimla, is to be filled by promotion as the vacancy has been
created on promotion of Dr. Shikha Sud as Associate Professor,
who was holding the post as promotee.
10. Respondent No.3 vide his separate reply has echoed the
stand of official respondents. During the proceedings of the case,
one Dr. Charu Smita Thakur also sought her impleadment as a
respondent in the case. Her prayer was allowed and she was
impleaded as respondent No.4. No reply has been filed on her
behalf.
.
11. We have heard learned counsel for the parties and have
also gone through the records of the case.
12. Respondents No. 1 and 2 have specifically submitted that
to maintain prescribed ratio of 50:50 between promotee
incumbents and direct recruits, roster provided in explanation to
Clause 6 of Chapter 13 of Handbook on Personal Matters, Volume-
I, will be applicable, which reads as under:
"6. Relative seniority of direct recruits and promotees: -
(a) Provision in general:
The relative seniority of direct recruits and of promotees
shall be determined according to the rotation of vacancies
between direct recruits and promotees which shall be
based on the quotas of vacancies reserved for direct
recruitment and promotion respectively in the Recruitment
Rules.
Explanation: -
A roster should be maintained based on the
reservation for direct recruitment and promotion in the
Recruitment Rules. Where the reservation for each
method is 50% the roster will run as follows: (1)
Promotion, (2) Direct Recruitment, (3) Promotion, (4) Direct
Recruitment and so on. Appointment should be made in
accordance with this roster and seniority determined
accordingly.
Illustration: -
When 75% of the vacancies are reserved for
.
promotion and 25% for direct recruitment, each direct
recruit shall be ranked in seniority below 3 promotees.
Where the quotas are 50% each, every direct recruit shall
be ranked below a promote. If for any reason, a direct
recruit or a promotee ceases to hold the appointment in
the grade, the seniority list shall not be re-arranged
merely for the purpose of ensuring the proportion referred
13.
to above."
Respondents have further contended that column No. 10
of the proforma for R & P Rules was amended and term 'posts' was
incorporated in place of term 'vacancies', which as per respondents,
necessarily meant that the roster is to conclude on the post and
once the roster is concluded then the ensuing vacancies shall be
filled from the quota (direct or promotion) in which vacancy had
occurred.
14. There is no dispute that cadre strength is always
measured by the number of posts comprising the cadre and there
must be a post in existence to enable the vacancy to occur. This,
however, will not imply that the application of roster will come to
an end on filling of the entire cadre strength. Application of roster
is not the end but only a mean to achieve the object.
15. The object is defined by R & P Rules, wherein specific
.
quota of 50% each for direct and promotee candidates has been
reserved as source for recruitment for the post of Assistant
Professor. In case the interpretation adopted by respondents is
accepted, reservation of 50% of the total posts for direct candidates
will never be achieved and practically it shall be 60% in favour of
promotees and 40% for direct recruits. Such an interpretation, that
stares at the face of object sought to be achieved, cannot be
countenanced.
16. Thus, such an understanding, in our view, is not legally
sustainable for the simple reason that it impedes at the very basis
of Recruitment and Promotion Rules providing for reservation in
the ratio of 50 : 50 between promotees and direct recruits.
17. While dealing with almost identical proposition in State
of Punjab and others vs. Dr. R.N. Bhatnagar and another,
(1999) 2 SCC 330, Hon'ble Supreme Court has held as under:
"11. On the other hand, the situation which has fallen for our
consideration in the present case in the light of Article 16(1) is
squarely covered by a decision of this Court in Paramjit Singh's
case (supra) as clarified by a latter decision in the very same
case reported in [1982] 3 SCC 191. In the aforesaid main case,
D.A. Desai, J, speaking for the bench of two learned Judges of
this Court, had to consider in paragraph 11 of the Report a
recruitment rule which permitted fixed percentage of posts to
be filled up in the given cadre from two different sources,
.
namely, promotees and direct recruits. Rule 6 of the Punjab
Police Service Rules, 1959, which came for consideration in
that case provided for a method of recruitment from two
different sources i.e. 80% by promotion from the rank of
Inspectors and 20% by direct recruitment. Examining the
working of the aforesaid quota rule for recruitment in the light
of the relevant rotational scheme of vacancies in the cadre to
which such recruitment was to be made, the following
pertinent observations were made in paragraph 11 of the
Report: (SCC p. 485)
"11. Where recruitment to a cadre is from two sources and
the Service Rules prescribe quota for recruitment for both
sources a question would always arise whether the quota
rule would apply at the initial stage of recruitment or also
at the stage of Confirmation, Ordinarily, if quota is
prescribed for recruitment to a cadre, the quota rule will
have to be observed at the recruitment stage. The quota
would then be co-related to vacancies to be filled in by
recruitment but after recruitment is made from two different
sources they will have to be integrated into a common cadre
and while so doing, the question of their inter se seniority
would surface.,...:.."
As there was some doubt about the observations found in the
aforesaid paragraph 11 and as to how the recruitment rule in
question was to be operated in the light of the quota prescribed
therein and the rotational method of achieving the said quota
of recruitment from two sources, a later Bench clarified the
position in the subsequent judgment in the case of Paramjit
Singh (supra). Another bench of two learned Judges, wherein
D.A. Desai, J., was common, clarified the observation in
paragraph 11 of the earlier Report as under: (SCC pp. 195-96,
paras 6 and 7)
"6. In our opinion there is no ambiguity in the judgment.
Ordinarily speaking, where recruitment is from two
sources with a view to integrating recruits from both
sources after the recruitment seniority is determined from
the date of entry into the cadre except where there has
been a substantial violation of the quota giving
.
undeserved advantage to one or the other source.
Seniority ordinarily speaking is determined with
reference to the date of entry into the cadre which in
service jurisprudence is styled the date of continues
officiation. These notions of service jurisprudence may
have to yield place to the specific rules and the fact
situation with reference to Rule 10 did compel this Court
to depart from the normal concept in service
jurisprudence. However, introduction of a roster system
is very well-known in-service jurisprudence. What this
Court meant while saying that when a quota rule is
prescribed for recruitment to a cadre it meant that quota
should be co-related to the vacancies which are to be
filled in. Who retired and from what source he was
recruited may not be very relevant because retirement
from service may not follow the quota rule. Promotees
who came to the service at an advanced age may retire,
early and direct recruits who enter the service at a
comparatively young age may continue for a long time. If,
therefore, in a given year larger number of promotees
retire and every time the vacancy is filled in by referring
to the source from which the retiring person was
recruited it would substantially disturb the quota rule
itself. Therefore, while making recruitment quota rule is
required to be strictly adhered to. That was what was
meant by this Court when it said : (SCC p. 486, para 14:
SCC (L&S) p. 318)
'The quota rule would apply to vacancies and
recruitment has to be made keeping in view the
vacancies available to the two sources according to
the quota.'
The quota in the present case is 4:1 that is, four
promotees to one direct recruit. Therefore, whenever
vacancies occur in the service the appointing authority
has to go on recruiting according to quota. In other words,
whenever vacancies occur, first recruit four promotees
irrespective of the factors or circumstances causing the
.
vacancies and as soon as four promotees are recruited
bring in a direct recruit. That was what was meant by
this Court when it said that a roster has to be introduced
and this roster must continue while giving confirmation.
The sentence which seems to have created a difference
of opinion reads as under : (SCC p.486, para 14 : SCC
(L&S) p.318)
"A roster is introduced while giving confirmation
ascertaining every time which post has fallen vacant
and recruit from that source has to be confirmed in the
post available to the source."
7. The sentence cannot be read in isolation. It has to be
read with the earlier sentence that the quota rule would
apply to the vacancies and recruitment has to be made
keeping in view the vacancies available to the two sources
according to the quota. The Court then proceeded to say
that if the quota rule is strictly adhered to there will be no
difficulty in giving confirmation keeping in view the quota
rule even at the time of confirmation."
The aforesaid decision which squarely applies to the facts
of the present case, therefore, leaves no room for doubt
that when under the recruitment Rule 9 in question there
is no reservation of any given category of candidates like
SCs, STs or BCs to the posts in the cadre of Professors,
appointments to the posts in the cadre have to be made in
the light of the percentage of vacancies in the posts to be
filled in by promotees or direct recruits. The quota of
percentage of departmental promotees and direct recruits
has to be worked out on the basis of the roster points
taking into consideration vacancies that fall due at a given
point of time. As stated earlier, as the roster for 3
promotees and one direct recruit moves forward, there is
no question of filling up the vacancy created by the
retirement of a direct recruit by a direct recruit or the
vacancy created by a promotee by a promotee.
Irrespective of the identity of the person retiring, the post
is to be filled by the onward motion of 3 promotees and
.
one direct recruit Consequently, learned counsel for the
appellant and learned senior counsel for the intervenor
were right when they contended that the High Court in its
impugned judgment had patently erred in invoking the
ratio of decision of this Court in R.K. Sabharwal's case
(supra) which was rendered in an entirely different
context for resolving an entirely different controversy
which did not arise on the facts of the present case. They
were also right in contending that the ratio of the decision
of this Court in Paramjit Singh's case (supra) read with the
decision of this Court in the same case reported in [1982]
3 SCC 191 would get squarely attracted in the facts of the
present case. Once that conclusion is reached, the result
becomes obvious. Whenever in the cadre of Professors of
Ophthalmology vacancies arise for being filled in at any
given point of time, those vacancies in the posts have to
be filled in by operating the roster in such a way that
available vacancies get filled up by allotting 75% of them
to departmental promotees and 25% to direct
recruits........."
18. The above noted exposition keeps none in the realm of
doubt as to how the roster is to be applied in respect of appointment
to the posts in a particular cadre which admits of entry from
different source.
19. We are also dealing with the fact situation where the
source of recruitment to the post of Assistant Professor in Himachal
Pradesh Medical Education Service is from two sources i.e. direct
recruitment and by way of promotion in the ratio of 50 : 50. Thus,
we have no hesitation to hold that in such situation each ensuing
vacancy in the cadre shall be filled by applicable roster and not
.
otherwise.
20. In the Department of Radiology, IGMC, Shimla,
undisputedly, out of first 4 posts, 2 were filled by promotee
candidates and next 2 were filled by direct recruits. It is stated that
the appointments to first 4 posts were not made in accordance with
applicable roster as first 2 posts went to promotees and next 2 posts
went to direct recruits, whereas the 2nd post should have gone to
direct recruit, 3rd post to promotee and then 4th post again to direct
recruit. Be that as it may, the appointments to first 4 posts in the
manner noted above, will not be of much relevance for deciding the
issue before us. Such factor may be relevant for deciding the
dispute, if any, as to inter se seniority between the incumbents
holding first 4 posts, with which we are not presently concerned.
21. There is no dispute that 5th post again went to promotee
candidate. Though, by filling of 5th post, the appointments to entire
cadre strength were made but what remained to be achieved was
the fulfilment of quota/reservation in the ratio of 50 : 50 between
promotees and direct recruits. In this manner, the promotees got
60% reservation against prescribed 50% quota and direct recruits
could get only 40% instead of 50% quota. In case the vacancy now
available is again filled by promotee candidate, the discrimination
.
already meted to direct recruits shall be perpetuated. On the other
hand, the appointment on existing vacant post by direct recruit
shall achieve the fulfillment of the respective quota of 50%
prescribed for direct recruits and in future adherence to exposition
in State of Punjab and others vs. Dr. R.N. Bhatnagar and
another (supra) shall serve the ends of applicable R & P Rules and
in this manner, the balance shall also be maintained between the
promotes and direct recruits in achieving their respective quota of
reservation to the extent of 50% each.
22. In light of above discussion, we have no hesitation to hold
that the action of respondents No. 1 and 2 to initiate the process
for filling up of vacancy to the post of Assistant Professor in the
Department of Radiology, IGMC, Shimla by promotion is wrong,
illegal, arbitrary and in violation of Articles 14 & 16 of the
Constitution of India. Accordingly, the process so issued by
respondents 1 and 2 by issuance of letter dated 6.2.2021 (Annexure
P-3) and letter dated 15.2.2021 (Annexure P-4) is quashed and set-
aside. It is held that the existing vacancy to the post of Assistant
Professor in the Department of Radiology, IGMC, Shimla is required
to be filled by initiation of process for direct recruitment from the
eligible candidates.
.
23. The petition is accordingly disposed of in the aforesaid
terms, so also the pending miscellaneous applications, if any,
leaving the parties to bear their own costs.
(Tarlok Singh Chauhan)
Judge
13th August, 2021
(GR)
r to (Satyen Vaidya)
Judge
