Himachal Pradesh High Court
Dr. Smriti Chauhan vs State Of H.P. & Another And Cwp No on 17 November, 2021
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 17TH DAY OF NOVEMBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CIVIL WRIT PETITION (ORIGINAL APPLICATION) No. 37 OF 2019
BETWEEN:-
1. DR. SMRITI CHAUHAN, W/O DR. NITIN
KAHYAP, RESIDENT OF AMAR NIWA,
THE MALL, SHIMLA-171001 (H.P.),
PRESENTLY WORKING AS SENIOR
MEDICAL OFFICER AT DR.
RAJENDRA PRASAD GOVERNMENT
MEDICAL COLLEGE, KANGRA AT
TANDA, DISTRICT KANGRA (H.P.).
2. DR. RAJNEESH SOOD, S/O SH. K.L.
SOOD, RESIDENT OF RADHA BIHARI
NIKUNJ, JAKHU, HOUSING COLONY,
SHIMLA-171002, PRESENTLY
WORKING AS MEDICAL OFFICER AT
D.D.U. HOSPITAL, SHIMLA-171001.
3. DR. LATA RANI CHANDEL, W/O SHRI
V.S. CHANDEL, RESIDENT OF VPO
SALOA, C/O SHRI SHAMSHER SINGH
CHANDEL, TEHSIL SHRI NAINA DEVI
JI, DISTRICT BILASPUR H.P. 174201,
PRESENTLY WORKING AS
DESIGNATED ASSISTANT
PROFESSOR DEPARTMENT OF
MICROBIOLOGY, SLBS Govt.
MEDICAL COLLEGE, NER CHOWK AT
MANDI, DISTRICT MANDI H.P. ...PETITIONERS
(BY ADARSH K. VASHISTA, ADVOCATE.)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ITS PRINCIPAL
SECRETARY (HEALTH) TO THE
GOVERNMENT OF HIMACHAL
PRADESH, SHIMLA-2.
2. DIRECTOR, MEDICAL EDUCATION
AND RESEARCH, HIMACHAL
PRADESH, SHIMLA, H.P.
3. DIRECTOR, HEALTH SERVICES,
DEPARTMENT OF HEALTH AND
FAMILY WELFARE, SHIMLA, H.P.
4. DR. RAMESH CHAND GULERIA, S/O
::: Downloaded on - 31/01/2022 23:17:57 :::CIS
2 CWPOA No. 37 of 2019
SHRI H.S. GULERIA, RESIDENT OF
HOUSE NO. 183/1, JAWAHAR NAGAR,
MANDI, DISTRICT MANDI, H.P.,
PRESENTLY POSTED AS BLOCK
MEDICAL OFFICER, DISTRICT
.
HOPITAL, KULLU, DISTRICT KULLU,
H.P.
5. DR. VINOD KUMAR MEHTA, S/O SH.
B.R. MEHTA, R/O SHANTI BHAWAN,
LOWER TUTIKANDI, NEAR ISBT,
SHIMLA-171004, PRESENTLY
WORKING AS SENIOR RESIDENT
IGMC, SHIMLA, H.P. ...RESPONDENTS
NO. 1 TO 3.)
r to
(BY SH.AJAY VAIDYA, SENIOR ADDITIONAL
ADVOCATE GENERAL, FOR RESPONENTS
(BY SH. DALIP SHARMA, SENIOR ADVOCATE,
ALONGWITH MS.SEEMA K. GULERIA AND
MR.MUNISH SHARMA, ADVOCATES, FOR
RESPONENT NO. 4.)
(BY SH. LOVNEESH KANWAR, ADVOCATE,
FOR RESPONENT NO. 5).
(NAME OF RESPODNENT NO. 6 IS DELETED
VIDE ORDER DATED 19.7.2021.)
Whether approved for reporting? Yes.
This petition coming on for hearing this day, the Court
delivered the following:
JUDGMENT
Present petition has been filed seeking following relief:-
"That the respondents may kindly be directed to draw a separate
seniority of eligible candidates reckoning their seniority from the
date of acquisition of essential qualification (MD/MS) and 3 years of
teaching experience for carrying out promotion to the post of
Assistant Professor (Microbiology), in the interest of justice."
2. Petitioner is serving as Medical Officer and is a member of
Himachal Pradesh Civil Medical Services (General Wing). Petitioner
having passed Graduation Degree in Microbiology with three years
experience as Senior Resident, after completion of Post Graduation, is
eligible to be promoted to the post of Assistant Professor in Microbiology
in Medical Colleges in State of Himachal Pradesh as provided in Rule 11
.
of Himachal Pradesh Medical Education Service Rules, 1999 (for short
'Rules 1999').
3. Petitioner has approached this Court seeking direction to
respondents to reckon the seniority of eligible candidates for promotion
to the post of Assistant Professor from the date of acquiring the
qualification for the said post as provided under Rule 11 of Rule 1999.
Whereas, respondents are considering eligible candidates on the basis
of the seniority as mentioned as members of Civil Medical Services
irrespective of date of acquiring/possessing the essential qualification
provided under Rule 11 of Rules, 1999.
4. So far as this High Court is concerned, the aforesaid issue
is not res integra as the said issue stands decided by Division Bench of
this Court vide judgment dated 18.9.2014 passed in CWP No. 3025 of
2014, titled Dr.Shikha Sood Vs. State of H.P. & another and CWP No.
2450 of 2014, titled Dr.Naineesh Sharma Vs. State of H.P. and others
wherein prayer of the petitioners therein was identical which reads as
under:-
"(i) That a writ in the nature of mandamus may be
issued directing the respondents to reckon the
seniority for promotion to the post of Assistant
Professor (Super Specialty) from the date a person
acquires the qualification as provided in clause 11 of
the HP Medical Education Service Rules, 1999 as
amended vide notification dated 28/06/2008."
5. Learned counsel for the petitioner has tried to re-open the
issue by submitting that in the judgment of Division Bench ratio of law
laid down in Shailendra Dania and others Vs. S.P. dubey and others,
reported in (2007) 5 SCC 535 and Challa Jaya Bhaskar & Others Vs.
.
Thungathurthi Surrender & others, Civil Appeal No. 5579-5586 of
2001 and also judgment passed by this High Court in S.S. Kutlehria &
others Vs. State of H.P. & others, CWP No. 1358 of 2008, has not
been taken into consideration. To substantiate the claim of the
petitioner, judgment passed by Punjab and Haryana High court in
Punjab State Electricity Board Vs. Ashok Kumar Sehgal, reported in
AIR 1990 (P&H) 117 and Delhi High Court in M.A. Khan and another
Vs. Municipal Council New Delhi & others, LPA No. 280 of 1997
Delhi High Court has also been referred. It has been submitted that
ratio of aforesaid judgments is that service rendered prior to acquiring
qualification is not to be taken into consideration towards eligibility for
promotion to the next higher post.
6. I have gone through these judgments and I am of the
considered opinion that ratio of these judgments is not relevant in
present case and the plea raised on behalf of petitioner on the basis of
it, is misconceived as in present case seniority of incumbent in Civil
Medical Services is taken into consideration for determining the interse
claim between eligible candidates and eligibility of candidates is
decided on the basis of possession of requisite Post Graduate Degree
with three years teaching experience as Lecturer/Registrar/
Demonstrator/Tuitor/Senior Resident/Chief Resident in the concerned
specialty after doing Post-graduation in the concerned specialty which is
essential qualification for falling in the zone of consideration amongst the
Medical Officers serving in Civil Medical Services for promotion to the
post of Assistant Professor.
.
7. It is apparent from Rules 1999 that teaching experience of a
period of three years is taken into consideration only after acquiring the
Post Graduate Degree or its equivalent but not the teaching experience
prior to acquiring the Post Graduate Degree,
8. The Division Bench of this Court after taking into
consideration various pronouncements of the Supreme Court on the
issue in reference has concluded as under:-
"23. This Court cannot issue writ of mandamus commanding the
respondents to reckon the seniority for promotion to the post of
Assistant Professor (Super Specialty) from the date when a
candidate acquires qualifications. This is the job and prerogative of
the official respondents and not of this Court. This Court has only
interpreted the Rules and as per the Rules, as discussed
hereinabove, that a candidate, at the time of falling in the zone of
consideration, must have Post Graduate degree alongwith three
years teaching experience."
I am in agreement with the aforesaid findings rendered by
the Division Bench. Otherwise also I am bound by the judgment passed
by the Division Bench and, therefore, present Writ Petition is dismissed
alongwith pending application(s), if any.
(Vivek Singh Thakur),
th
17 November, 2021 Judge.
(Keshav)
