Punjab-Haryana High Court
State Of Haryana vs Dr.Akhlakh Ahmad on 19 December, 2023
Neutral Citation No:=2023:PHHC:164953
2023:PHHC:164953
RSA-2268-2000 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-2268-2000 (O&M)
Reserved on:- 29.11.2023
Pronounced on:- 19.12.2023
The Haryana State through its Commissioner and Secretary to Govt. of
Haryana, Health Department, Chandigarh and others
...Appellants
Versus
Dr. Akhlaq Ahmad
...Respondent
CORAM:- HON'BLE MS. JUSTICE AMARJOT BHATTI
Present:- Mr. Narender Singh Behgal, AAG Haryana
for the appellants.
Mr. Amit Jain, Advocate
for the respondent.
****
AMARJOT BHATTI, J.
1. The appellants/defendants have filed the present Regular
Second Appeal against impugned judgment and decree dated 10.03.2000
passed by learned Additional District Judge, Gurgaon vide which the
appeal preferred by the defendants was dismissed by upholding the
judgment and decree dated 02.09.1999 passed by the learned Additional
Civil Judge (Senior Division), Gurgaon vide which the suit filed by the
plaintiff Dr. Akhlaq Ahmad was decreed.
2. The facts of the case are that plaintiff Dr. Akhlaq Ahmad has
filed suit for declaration to the effect that he be treated on deputation to the
Medical College, Rohtak against one of the posts earmarked for one year
training for HCMS Doctors for doing Post-Graduate Diploma course
during the year 1980-81, with consequential benefits of pay, allowances
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etc. along with interest @18% from the date when the benefits had become
due till the date of its payment to the plaintiff. The plaintiff was posted as
Medical Officer in Civil Hospital, Gurgaon in the year 1980 when he was
selected for undergoing diploma course in Orthopedics at Medical College,
Rohtak during the session 1980-81. Dr. K.L. Sachdeva, Medical Officer,
General Hospital, Karnal along with other doctors including the plaintiff
were selected to undergo the diploma course. The plaintiff alongwith other
doctors had joined the said diploma course after getting No Objection
Certificate from the Government. The plaintiff along with other doctors
made representation to defendant No. 1 Haryana Government that during
the session 1980-81, the posts reserved for HCMS Doctors were lying
vacant and they may be treated on deputation by utilizing those ten posts
meant for training of HCMS doctors. Even though the said representation
was recommended by the defendant No. 2 to defendant No. 1, no fruitful
result came out. Thereafter, Dr. Ashwani Kumar filed Civil Writ Petition
No. 2622 of 1987 in the Punjab and Haryana High Court, which was
decided in his favour, directing the Government to grant ex-post facto
sanction for treating Dr. Ashwani Kumar on deputation to Medical
College, Rohtak during the period of his training. Later on another doctor
namely Dr. Renu Verma was also granted ex-post facto sanction treating
her on deputation against one of the ten posts ear-marked for one year
training for HCMS Doctors during the session 1980-81. Though the relief
was granted to above said two doctors, no decision was taken on the
representation given by Dr. K.L. Sachdev and the plaintiff. Thereafter, Dr.
K.L. Sachdeva filed a civil suit at Karnal which was decreed vide
judgment and decree dated 16.05.1992 and he was also granted the same
benefit. The plaintiff also submitted all the relevant papers pertaining to
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the service record and NOC regarding undergoing the said diploma course,
yet the plaintiff was not granted aforementioned benefit. Despite
reminding the defendants and requesting the Principal, Medical College,
Rohtak, no positive result came out and the plaintiff was not granted any
benefit. Ultimately, the present suit was filed.
3. Notice of the suit was given to the defendants. The defendants
No. 1 to 3 filed joint written statement taking preliminary objections
regarding maintainability; locus standi; time barred; cause of action etc. It
was admitted that the plaintiff was selected for diploma in Orthopedics at
Medical College, Rohtak in the session 1980-81 and No Objection
Certificate for open seat was issued on the condition that he will be
granted leave of the kind due. The leave of the kind due was sanctioned
vide letter No. 15/1/84-2HBI dated 06.02.1986. It was further alleged that
during the year 1980-81, the following seats were ear-marked for the
training at Medical College, Rohtak :-
Sr. No. Name of the Specialty Number of Seats
It was submitted that Sh. Ramesh Chander Bhutani was
recommended against seat of Diploma in Orthopedic. During the year
1980, the Doctors who were having five years regular service with one
year rural service were recommended against seats reserved for HCMS.
The plaintiff, though, fulfilled the condition of five years service but he
failed to fulfill the condition of one year's rural service. As such, he was
not recommended against the reserved seat. It was further submitted that
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Dr. P.L. Jindal who was also issued No Objection Certificate against the
open seats like the plaintiff for the same course in the year 1980-81 had
filed civil writ petition in the Punjab and Haryana High Court, which is
still pending. The plaintiff applied for and completed Diploma in
Orthopedic on the conditions mentioned in Govt. letter No. 10/19/80-IHBI
dated 14.08.1980. It was further alleged that the plaintiff was issued No
Objection Certificate for open seat on the condition that he will go on
training at his own criteria and as per condition No. 4, the plaintiff was
sent for training after getting leave of the kind due. The terms and
conditions mentioned in Annexure D/1 cannot be altered or changed as per
provisions of Contract Act and the terms and conditions were settled with
the plaintiff individually, therefore, his case had no relevancy with the
cases of other Doctors. The case of the plaintiff is based on different terms
and conditions and leave of the kind due had also been granted to him in
the year 1986. He cannot be granted any pay or allowance for the leave
granted in his favour under Rule 4.9(b)(ii) of Punjab CSR Volume I Part I.
It was further submitted that the representation of the plaintiff was rejected
after due consideration. The plaintiff had filed the present suit after a long
gap of fifteen years without any valid cause of action. Therefore, it was
prayed by the defendants that suit filed by the plaintiff may kindly be
dismissed with costs.
4. In replication, the plaintiff denied the facts stated in the
written statement and reiterated his claim in the plaint. From the pleadings
of the parties, following issues were framed by the trial Court on
19.05.1998 :-
(1) Whether the defendants had ear-marked 10 posts for HCMS
Doctors for doing post graduate diploma during the year/sessions
1980-81? OPP
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(2) Whether the plaintiff was/is entitled to be treated on
deputation during the period of his training for post graduate
diploma against one of the ten posts as alleged? OPP
(3) Whether the plaintiff is entitled to the benefits of pay etc.
during the period of his training? OPP
(4) Whether the suit of the plaintiff is not maintainable in the
present form? OPD
(5) Whether the plaintiff has no locus standi to file the present
suit? OPD
(6) Whether the suit is barred by time? OPD
(7) Whether the suit is not properly valued for Court &
jurisdiction fee? OPD
(8) Relief.
5. In order to prove the suit, the plaintiff Dr. Akhlaq Ahmad
himself stepped into the witness box as PW5. He further examined Dr.
K.L. Sachdeva, Ex Medical Officer, presently practicing at Karnal as PW1,
Parvinder Singh, Steno, Medical College, Rohtak as PW2, Subhash
Chinder, Clerk, Civil Hospital, Gurgaon as PW3 and Sanjiv Malik, Clerk,
Director Health, Chandigarh, Haryana as PW4. Thereafter, learned counsel
for the plaintiff tendered document Ex.PX and Ex.PY and closed the
evidence.
6. In order to rebut the case, the defendants examined Sanjiv
Malik, Clerk, Director of Health Services, Haryana Chandigarh as DW1
and closed the evidence.
7. After hearing the arguments advanced by learned counsel for
both the parties, the suit filed by the plaintiff was decreed vide judgment
and decree dated 02.09.1999. Feeling aggrieved of this judgment and
decree, the defendants filed Civil Appeal No. 124 of 28.09.1999 which
was dismissed vide judgment and decree dated 10.03.2000. Feeling
aggrieved of this judgment and decree, the present Regular Second Appeal
has been filed by the appellants/defendants.
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8. I have heard the arguments advanced by learned counsel for
both the parties. The learned State Counsel argued that judgment and
decree dated 10.03.2000 passed by learned Additional District Judge,
Gurgaon and the judgment and decree dated 02.09.1999 passed by learned
Additional Civil Judge (Senior Division), Gurgaon are against the law and
the facts of the case. The Courts below failed to appreciate the evidence
led by the appellants/defendants. The documents were not rightly
considered. The department had given No Objection Certificate to the
respondent/plaintiff for doing diploma in Post-Graduate course for the
open seat on the condition that he will do the same at his own expenditure
and he will not claim anything from the department. There was specific
condition No. 4 of Government Letter No. 10/19/80-1HB1 dated
14.08.1980. Accordingly, the respondent/plaintiff had applied for leave
which was duly sanctioned for the purpose of doing the said course. The
respondent/plaintiff did not fulfill one of the condition i.e. rural service for
one year and for this reason he was not recommended against the reserved
seat. Both the Courts below have failed to appreciate these facts and
wrongly decreed the suit filed by the respondent/plaintiff. He cannot be
granted any pay or allowance for the leave granted in his favour under
Rule 4.9(b)(ii) of Punjab CSR Volume I Part I. The case of
respondent/plaintiff has to be considered individually and he cannot be
granted any relief on the basis of relief granted to the other Doctors, if any.
Therefore, the findings given by the Courts below are not on sound footing
and the same are liable to be reversed. The learned Courts below failed to
consider that the respondent/plaintiff had filed the suit seeking declaration
after a long gap of more than 15 years. Therefore, the suit filed by him was
also time barred. It was prayed that the judgment and decree passed by the
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Courts below may kindly be set aside by accepting the present appeal and
the suit filed by the respondent/plaintiff may kindly be dismissed.
9. On the other hand, the learned counsel for the
respondent/plaintiff has based his entire claim on the basis of letter dated
10.04.1980 Ex.DW1/C by Director Health Services, where it was
specifically mentioned that in the case of plaintiff, there was shortage of
11 days in completing one year rural service which was negligible and it
was accordingly condoned and it was further held that the
respondent/plaintiff fulfill the conditions required by the Government.
Subsequently the appellants/defendants could not take a stand that the
respondent/plaintiff did not fulfill the requisite condition and for that
reason his case was not recommended for the reserved seat. It was further
pointed out that as per the policy, there were 10 posts earmarked for one
year training for HCMS Doctors for doing Post-Graduate diploma course
during the year 1980-81. Some of the posts were still lying vacant,
therefore, the name of respondent/plaintiff could have been considered
against the said vacant seat. Dr. K.L. Sachdeva had filed Civil Suit No.
458/1991 which was decreed in his favour vide judgment and decree dated
16.05.1992 which is Ex.PX and Ex.PY. On the basis of this judgment, he
was treated as on deputation to Medical College, Rohtak against one of the
10 posts earmarked for one year training for HCMS Doctors. The learned
counsel for the respondent/plaintiff pointed out that Dr. Ashwani Kumar,
Dr. K.L. Sachdeva and Dr. Renu Verma all were granted ex-post facto
sanction, treating them on deputation during the said period and they were
granted all the benefits. The plaintiff also gave representation to the
appellants/defendants for giving him all the benefits on the same analogy.
The respondent/plaintiff gave several representations and also served
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notice under Section 80 CPC. When no favourable action was taken by the
appellants/defendants, the suit was filed. The facts of the case were rightly
considered by the learned Additional Civil Judge (Senior Division),
Gurgaon and his suit was rightly decreed vide judgment and decree dated
02.09.1999 and civil appeal preferred by the appellants/defendants was
also dismissed vide impugned judgment and decree dated 10.03.2000. It is
prayed that the appeal preferred by the appellants/defendants is without
merits and the same may kindly be dismissed.
10. I have considered the arguments advanced before me. I have
also gone through the record carefully. Some of the facts are admitted. The
present respondent/plaintiff had filed suit for declaration that he shall be
treated on deputation to Medical College, Rohtak against one of 10 posts
ear-marked for one year training for HCMS Doctors for doing Post-
Graduate diploma course for the session 1980-81. The said suit filed by the
plaintiff was decreed vide judgment and decree dated 02.09.1999 and the
appeal preferred by the appellants/defendants was also dismissed vide
judgment and decree dated 10.03.2000. Admittedly, Dr. Akhlaq Ahmad
was working as Medical Officer in Civil Hospital, Gurgaon in the year
1980. he applied for undergoing diploma course in Orthopedic at Medical
College, Rohtak for the session 1980-81. Admittedly there were 10 posts
ear-marked for one year training course for HCMS Doctors. The letter in
this regard is Ex.DW1/E, according to which two seats were reserved for
Radiology, two seats for Anesthesiology, two seats for Pathology, one seat
for Diploma in OBST & Gynae, one seat for Diploma in Orthopedic, one
seat for DLO(ENT) and one seat reserved for M.D. Medicine. It is further
not disputed that for doing the aforesaid Post-Graduate diploma course, the
Doctor required to have five years service and one year rural service. The
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appellants/defendants have placed on record one order recommending the
names of various Doctors against 10 permanent posts of HCMS II and
posted at Medical College, Rohtak for undergoing training of one year
which is Ex.DW1/D. In this order there are names of doctors who were
recommend for the aforesaid course. Against one seat of Diploma in
Orthopedic, name of Dr. Ramesh Chander Bhutani was recommended,
which is mentioned at serial No. 10.
The respondent/plaintiff has based his claim on letter dated
10.04.1980 Ex.DW1/C. I have carefully gone through the contents of said
letter vide which the shortfall of 11 days in rural service was considered as
negligible and it was presumed that he fulfill the condition of rural service
of one year. As per clause 4, four conditions were imposed for undergoing
Post-Graduate diploma course that in case the said candidate was selected
for the course then he will serve the department for a minimum period of
three years or he will deposit Rs. 10,000/- with the treasury. As per the
second condition, during the period of said course he will not claim any
salary, allowance etc. without the prior approval of the Government.
Thirdly, that after doing the said course he will not claim any preference
for promotion out of the way and lastly, the candidate will apply for leave
for doing the said course. The letter issued by the Director Health Services,
Haryana, Chandigarh dated 14.05.1980 is Ex.DW1/E. As per these
conditions, the respondent/plaintiff applied for leave. The leave
application is Ex.DW1/A. The said leave was accordingly recommended
and the letter in this regard is Ex.DW1/B. The leave was sanctioned as per
letter Ex.DW2/A. After completion of course, the joining letter dated
14.07.1981 is Ex.PW5/4.
The aforesaid record clearly indicates that the
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respondent/plaintiff was given no objection for doing the Post-Graduate
diploma course for the session 1980-81 on an open seat by applying leave
from the department as per the rules. The conditions which were imposed
by the Government on the respondent/plaintiff were duly acceptable to
him. He accordingly applied for leave for doing the course and thereafter,
joined his duty. It cannot be ignored that there was only one seat ear-
marked for doing Diploma in Orthopedic, for which the name of Dr.
Ramesh Chander Bhutani was recommended. Therefore, against said one
post for Diploma in Orthopedic, the names of two doctors could not have
been recommended. He was permitted for doing the said course on open
seat which he candidly accepted.
The respondent/plaintiff started giving representations
claiming benefits for doing the Post-Graduate diploma course for the
session 1980-81 in the year 1995. Thereafter, he served legal notice dated
15.07.1996 under Section 80 CPC which is Ex.PW5/1 and ultimately filed
the civil suit on 19.02.1997. The record indicates that the Government
afforded opportunity to the respondent/plaintiff by permitting him to do
the said Post-Graduate diploma course against open seat by applying leave
as per the Government rules. After availing the said facility, he remained
silent for years together and after a lapse of about 15 years, he started
giving representations to the Department seeking consequential benefits.
The respondent/plaintiff did not institute any case within a reasonable time
challenging the conditions which were imposed upon him by the
department. Therefore, he is estopped from challenging the conditions
which were imposed upon him for doing the said course by his own act
and conduct after the lapse of so many years. He cannot derive any benefit
from the judgment or any order which is in favour of other Doctors. As
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referred above, name of Dr. Ramesh Chander Bhutani was recommended
against the seat of Diploma for Orthopedic. Therefore, it cannot be
expected that the name of present respondent/plaintiff will also be
considered against the same seat. The suit filed by the respondent/plaintiff
after a period of more than 15 years is hopelessly barred by limitation. The
findings of the Courts below on Issues No. 1 to 3 and 6 are not justified
and the same are reversed. The aforesaid facts were not considered by the
learned First Appellate Court while passing the impugned judgment and
decree dated 10.03.2000 vide which the appeal was declined and the
judgment and decree dated 02.09.1999 passed by the learned Additional
Civil Judge (Senior Division), Gurgaon was upheld.
Considering the aforesaid factual position, I find merits in the
appeal preferred by the appellants/defendants No. 1 to 3 and the judgment
and decree passed by the two Courts below are accordingly, set aside and
the suit filed by the respondent/plaintiff seeking declaration is dismissed
and resultantly, the Regular Second Appeal preferred by the
appellants/defendants is accordingly, allowed.
Pending application(s) if any, shall stand(s) disposed of.
The photocopy of record received from the Courts below be
sent back to the concerned quarters.
19.12.2023 (AMARJOT BHATTI)
lalit JUDGE
Whether speaking/reasoned: Yes
Whether reportable: Yes/No
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