Himachal Pradesh High Court

Dr. Bharti vs . State Of H.P. & Ors on 8 February, 2022

Bench: Jyotsna Rewal Dua

Dr. Bharti Vs. State of H.P. & Ors CWP No. 531/2022

08.02.2022 Present: Mr. Imran Khan, Advocate, for the petitioner.

Mr. Hemant Vaid, Mr. Hemanshu Mishra and Mr.

Bharat Bhushan, Additional Advocates General, for the respondents-State.

CMP No.1097/2022

Learned Additional Advocate General has supplied

the instructions dated 07.02.2022 in response to the

application moved by the petitioner seeking modification of the

order dated 21.01.2022 passed in the matter. The instructions

are taken on record.

2. Heard learned counsel for the parties and gone

through the record.

3(i). The petitioner was appointed as Assistant

Professor in the Community Medicine Department of Pt.

Jawahar Lal Nehru Government Medical College and Hospital,

Chamba, District Chamba, H.P. vide notification dated

21.09.2019 (Annexure P-1). She joined her duties on

24.09.2019.

3(ii) The Directorate of Medical Education & Research,

Haryana, vide notification dated 25.09.2021, invited

applications for filling up of various posts including 26 posts of

Associate Professor on regular basis. Clause-4 under General

Terms and Conditions of this advertisement requires that such

of the applicants who were already in Govt./Semi

Govt./Corporation or Autonomous Body Service should send

their applications through their respective Head of Institute or

'No Objection Certificate' should be submitted at the time of

interview, failing which their candidature would not be

considered for interview. Clause-4 under General Terms and

Conditions is extracted hereinafter:-

"4. The applicants who are already in Govt./Semi

Govt./Corporation or Autonomous Body Service should send application through their respective Head of Institute or 'No Objection Certificate' may be submitted at the time of interview, failing which the applicant will

not be allowed/considered for interview, NOC shall not

be older than three months. Further, the candidature of applicants who have resigned from their posts will be considered only if their resignation has been accepted from their employer."

3(iii). Petitioner applied for the post of Associate

Professor, advertised by Directorate of Medical Education &

Research, Haryana. She also applied for No Objection

Certificate from respondent No.3 i.e. the Principal, Pt. Jawahar

Lal Nehru Government Medical College and Hospital,

Chamba, District Chamba, H.P.

3(iv). On 09.09.2021, respondent No.3 refused to issue

No Objection Certificate to the petitioner in view of the

"directions received from Additional Chief Secretary (Health)

to the Govt. of Himachal Pradesh, Shimla-2 vide letter

No.HFW-B(B) 2-8/2016-1 dated 13.11.2019.

4(i). Petitioner thereafter represented to the Additional

Chief Secretary (Health) to the Govt. of Himachal Pradesh on

13.09.2021. Getting no response, she preferred the instant

writ petition on 19.01.2022, seeking direction to the

respondents to issue No Objection Certificate in her favour for

permitting her to appear in the interview for the post of

Associate Professor in the Department of Community

Medicine of Directorate of Medical Education & Research,

Haryana. According to learned counsel for the petitioner, at the

4(ii).

r to time of filing of the petition, the date of the interview had not

been fixed.

Alongwith the writ petition, CMP No.942/2022 was

moved for interim direction with respect to grant of provisional

No Objection Certificate to the petitioner during the pendency

of the petition. The matter was listed on 20.01.2022 and

thereafter following order was passed on 21.01.2022:-

"Learned Senior Additional Advocate General has

placed on record communication dated 13.11.2019 issued by the Special Secretary (Health), whereby the faculty members already encadred under the

Encadrement policy on regular basis through promotion or through direct recruitment from HPPSC have been held not entitled for NOC for applying anywhere else. The petitioner is also a regular faculty in the Department of Community Medicine at Pt. Jawahar Lal Nehru Government Medical College & Hospital, Chamba, District Chamba, H.P. There is no challenge to the aforesaid communication of the Government. Further, the request of petitioner for NOC was rejected by the competent authority on 9th September, 2021 and the petitioner waited for a long period before approaching this Court for the reasons best known to him. In view of this, no interim direction can be issued at this stage. Learned Senior Additional Advocate General seeks time to file detailed reply. Be filed within four weeks. List on 28th March, 2021"

4(iii). On 01.02.2022, the instant application was moved

by the petitioner for modification of the above extracted order

dated 21.01.2022. It was submitted in the application that

interview for the post in question can be conducted any time

by 10.02.2022. Cognizance of the matter was again taken on

03.02.2022, when the matter was ordered to be listed on

07.02.2022. During hearing of the case, learned counsel for

the petitioner submitted that the interview for the post in

question has now been scheduled to be held on 10.02.2022.

Non grant of No Objection Certificate to the petitioner for

participating/appearing in the interview would make this writ

petition infructuous.

Further it was submitted that previously also in

similar circumstances, this Court had directed the

respondents to grant No Objection Certificate in favour of

similarly situated applicants to enable them to apply/appear

for the interview for the post of Associate Professor in different

medical colleges within and outside the State. Reference in

this regard was invited to the order dated 17.12.2021 passed

in CWP No. 7827/2021 and order dated 21.08.2019 passed in

CWP No.1775/2019. Copies of the orders have been

enclosed with the application. Following order was passed in

the application on 07.02.2022.

"By means of this application, the applicant/petitioner seeks modification of the order dated 21.01.2022. Learned counsel for the applicant/petitioner submits that the interview for the post in question is fixed for 10 th

February 2022. Considering the urgency pointed out by learned counsel for the petitioner, respondents are

.

directed to respond to the application by 08.02.2022.

List on 08.02.2022, as prayed for."

4(iv). Today, learned Additional Advocate General has

supplied instructions dated 07.02.2022 imparted to him in the

matter by respondent No.3. Relevant part of the instructions is

extracted hereinafter:-

"Kindly refer to your office direction received telephonically & through email on dated 07-02-2022

regarding the above titled case.

1. That application was received from Dr Sumit Chawla Associate Professor Community Medicine and Dr Bharti Assistant Professor Community Medicine regarding NOC for appearing in Interview for faculty

posts advertised from Director of Medical Education and Research, Haryana vide advt. No.DMER/Rectt/03, dated 31-08-2021.

2. That vide letter No. M-Estt/G/189/PF/19-11888

dated 09-09-2021, Dr Sumit Chawla, Associate Professor and vide letter No. M-Estt/G/189/PF/19-11895 dated 09-09-2021, Dr Bharti, Associate Professor both

were intimated respectively that "No Objection Certificate" cannot be issued as per the direction received from Additional Chief Secretary (Health) to the Govt of Himachal Pradesh Shimla-2 vide letter No. HFW- B (B) 2-8/2016-1 dated 13-11-2019.

3. That it is pertinent to mention here that Dr Sumit Chawla joined as Associate Professor in Pt. JLNGMCBH Chamba on dated 24-09-2019 afternoon, and Dr Bharti joined as Assistant Professor in PL JlNGMC&H Chamba on dated 24-09-2019 afternoon, both the petitioners have completed only two years four months of resular service.

4. That there will be shortage of faculty in the aforesaid department due to which the MBBS students will suffer.

5. That the judgment referred in the petition regarding issuing of NOC to other incumbents, cannot be considered as the said petitioners went NOC for

appearing in interview outside Himachal Pradesh I.e. Haryana.

.

This is for your kind information and further necessary action please Yours faithfully

Principal, PL JLN Govt. Medical College, Chamba District Chambs (HP)"

On the basis of above extracted instructions,

learned Additional Advocate General argued that No Objection

Certificate cannot be issued to the petitioner, in view of the

letter dated 13.11.2019, which states that faculty members,

who had already encadered under the encadrement policy on

regular basis through promotion or through direct recruitment

from HPPSC shall not be issued NOC for applying elsewhere.

It would be appropriate at this stage to extract the entire

phraseology used in letter dated 13.11.2019:-

"I am directed to invite your kind attention towards this department notification No. HFW-B(B)9-4/2015-II, dated

17.11.2018 vide which the cadre of all the new Medical colleges of the State I.e. Dr. YSPGMC Nahan, Dr. RKGMC Humirpur, Pt. JLNGMC Chamba & SLBSGMC Mandi has been separated and sthe options were invited from the faculty members of TGMC & Dr. RPGMC Tanda for permanent encadrement at the level of Professor/Associate Professor/Assistant Professor in the new Medical Colleges of State. Options were further invited from the desirous and eligible GDO's including (designated Assistant Professor) for permanent encadrement in new Medical colleges. Various faculty members have already been encadered in new medical Colleges of the State under this policy. Now after the encadrement in Medical Colleges the faculties are applying for NOC so that they could apply for IGMC & Dr. RPGMC Tanda. It is clearly mentioned in the encadrement policy that the faculty/GDO's opting for the encadrement shall have not right of repatriation

or transfer to faculty cadre of any other Medical College. In spite of this the faculties are applying for

.

NOC.

Therefore, it is hereby informed that the faculty members who have already encadered under the

encadrement policy on regular basis through promotion or through direct recritment from HPPSC shall not be issued NOC for applying elsewhere."

5. Prima-facie, a perusal of the above extracted letter

shows that vide department notification dated 17.11.2018,

cadre of all the new Medical Colleges of the State i.e. Dr.

YSPGMC Nahan, Dr. RKGMC Humirpur, Pt. JLNGMC

Chamba & SLBSGMC Mandi were separated after inviting

options from the faculty members of IGMC Shimla and Dr.

RPGMC Tanda. Despite this, the faculty members, who had

already been encadered in new medical colleges were

requesting for repatriation or transfer to faculty cadre of any

other Medical college in the State. It was in that background,

letter dated 13.11.2019 was issued to the effect that after

encadrement on regular basis either through promotion or

through direct recruitment from HPPSC, NOC would not be

granted to the faculty members for applying elsewhere.

In the instant case, the petitioner is not seeking

change of encadrement from Pt. JLNGMC, Chamba to any

other medical college in the State. She is seeking No

Objection Certificate for applying/appearing in the interview for

the post of Associate Professor advertised by Directorate of

Medical Education & Research, Haryana, which is now stated

to be scheduled on 10.02.2022.

In support of the prayer for issuance of NOC,

learned counsel for the petitioner has also placed reliance

upon order dated 17.12.2021 passed by a Division Bench of

this Court in CWP No.7827/2021, wherein the respondents

were permitted to grant NOC in favour of the petitioner therein

to enable him to apply/appear in the interview for the post of

Associate Professor in the Department of Psychiatry in Dr.

RPGMC Tanda. Reliance was also placed upon another order

dated 21.08.2019 passed by the Division Bench in CWP

No.1775/2019, wherein respondents were directed to issue

provisional NOC to the petitioner therein to compete for

selection to the post of Assistant Professor in AIIMS Delhi. The

order reads as under:-

"CWP No. 1775 of 2019 & CMP No. 7503 of 2019 Heard Mr. Shrawan Dogra, learned Senior Counsel for the petitioner and Mr. Ajay Vaidya, learned Senior Additional Advocate General for the respondents.

2. The main grievance with which the petitioner has come up with the above writ petition is that the respondents are refusing to issue a No Objection Certificate to enable him to compete for selection to the post of Assistant Professor of GI Surgery & Liver Transplantation at AIIMS, Delhi.

3. The petitioner is working at present, as Assistant Professor (Gastroenterology Surgery) in the Department of Surgery at IGMC, Shimla. In a short reply that the respondents have filed, it is claimed by them that since the petitioner is the only person available in the Super Specialty of GI Surgery, it is not in public interest to issue the No Objection Certificate.

Reliance is also placed by the respondents upon the decision of this Court in State of Himachal Pradesh vs.

.

Dr. Sanjay Vikrant, 2008 (1) Sim. LC 331.

4. But it appears from the decision in Dr. Sanjay Vikrant (supra) that an unwilling horse cannot be

retained. It is true that the issuance of a No Objection Certificate may jeopardize public interest, but the other option available to the petitioner will make the things more worse for the respondents. It is certainly a

hobson's choice.

5. Therefore, for the present, there will be an interim direction to the respondents to issue a

provisional No Objection Certificate to the petitioner subject, however, to the outcome of the writ petition.