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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sureshwar Thakur, Sandeep Sharma, JJ.
Aakash Srivastava - Appellant
Versus
State Of Himachal Pradesh & Ors. - Respondents
C.W.P. No. 4423 of 2020, 4245 of 2020, 4424 of 2020, 4425 of 2020, 4427 of 2020, 4428 of 2020, 2894 of 2021
Decided On : 20-07-2021
The Court held that the condition of "repeat tenure" provided under clause 7.4 of the Resident Doctor Policy is unfair, unlawful, unconstitutional, and defeats the purpose of the Regularization policy. The Court directed the respondents to regularize the service of the petitioners against the posts of Senior Resident/tutor in their respective specialties forthwith and quashed clause 7.4 of the Doctor Resident Policy.
Fact of the Case:
The petitioners, who were appointed as tutors, senior residents, and junior residents on a contractual basis in newly opened Government Medical Colleges in Himachal Pradesh, filed petitions challenging the condition of "repeat tenure" provided under clause 7.4 of the Resident Doctor Policy, which barred them from continuing in the same specialty after a period of three years. They also sought regularization of their services against the posts they were appointed to.
Finding of the Court:
The Court found that the petitioners possessed the requisite qualification and eligibility as prescribed in the Resident Doctor Policy and the terms and conditions for the appointment of contractual faculty. The Court held that the respondents could not deny the petitioners the benefit of regularization on the pretext that they did not qualify for the eligibility criteria prescribed in the R&P Rules, as the posts of Tutors, Senior Residents, and Junior Residents were not included in the R&P Rules.
Issues: 1. Whether the petitioners, who were duly qualified and eligible, were appointed as tutors in the department of Anatomy, physiology, pharmacology, and microbiology on a contract basis, can claim regularization against the post of Tutors and Senior Residents in terms of regularization policies framed by the state of Himachal Pradesh? 2. Whether condition of "repeat tenure" provided under clause 7.4 of the Resident Doctor Policy notified vide notification dated 22.6.2019, is unfair, unlawful, un-constitutional and defeats the purpose of regularization policy.
Ratio Decidendi: The Court held that the condition of "repeat tenure" provided under clause 7.4 of the Resident Doctor Policy is unfair, unlawful, unconstitutional, and defeats the purpose of the Regularization policy. The Court observed that the petitioners possessed the requisite qualification and eligibility as prescribed in the Resident Doctor Policy and the terms and conditions for the appointment of contractual faculty. The Court held that the respondents could not deny the petitioners the benefit of regularization on the pretext that they did not qualify for the eligibility criteria prescribed in the R&P Rules, as the posts of Tutors, Senior Residents, and Junior Residents were not included in the R&P Rules.
Final Decision: The Court allowed the petitions and directed the respondents to regularize the service of the petitioners against the posts of Senior Resident/tutor in their respective specialties forthwith. The Court also quashed clause 7.4 of the Doctor Resident Policy and directed the respondents to permit the petitioners to continue serving as Senior Residents/tutor specialists, in the medical college, where they were appointed.
JUDGMENT
Sandeep Sharma, J. - Since common questions of facts and law are involved in the above captioned petitions and all the petitioners have prayed for similar relief(s), with the consent of the learned counsel for the parties, all the cases are taken up together for final disposal.
2. In the year, 2016, Government of Himachal Pradesh, decided to open four medical colleges in the State i.e. 1.) Dr. YS Parmar Medical College Nahan; 2.) Sh. Lal Bahadur Shastri Government Medical College, Mandi; 3.) Pt. Jawahar Lal Government Medical College, Chamba; and 4.) Dr. Radha Krishan Government Medical College, Hamirpur, H.P. Vide notification dated 22.4.2016 (Annexure P-12), Department of Medical Education, Government of Himachal Pradesh, framed terms and conditions for the appointment of Professor, Associate Professor, Assistant Professor, Tutors, Senior Residents and Junior Residents (on contractual basis), in the newly opened Government Medical Colleges, which reads as under :
" Terms and conditions for the appointment of Professor, Associate Professor, Asstt. Professor, Tutors, Senior Residents and Junior Residents (on contract basis) in the newly opened Government Colleges in the State of Himachal Pradesh
1. The Professor/Associate Professor/Asstt. Professor/Tutor/Senior Resident/Junior Resident in the Department of Medical Education, H.P. will be engaged on contract basis initially for one year, which may be extendable on year to year basis.
2. The Professor/Associate Professor/Asstt. Professor/Tutor/Senior Resident/Junior Resident appointed on contract basis will be paid consolidated fixed contractual amount as mentioned in Annexure-A (which shall be a fixed amount of pay). An annual increase @ of 3% in contractual emoluments for the subsequent years will be allowed if contract is extended beyond one year and no other allied benefits such as senior/selection scales etc. shall be given.
3. The Addl. Chief Secretary/Pr. Secretary/Secretary (Health) to the Government of Himachal Pradesh will be appointing and disciplinary authority.
4. He /she will not be governed by the rules, regulations and orders in force from time to time as applicable to other government servants such as CCS (CCA) Rules, 1965 and CCS (Conduct) Rules, 1964 as are applicable in Himachal Pradesh.
5. Before submitting the report to the Government the contract appointee shall sign an agreement as per Annexure-B.
6. The service of the Contract Appointee will be purely on temporary basis. The appointment is liable to be terminated in case the performance/conduct of the contract appointee is not found satisfactory.
7. During the contract service, no advance will be given to him / her.
8. Contractual Appointee Professor/Associate Professor/Asstt. Professor/Tutor/Senior Resident/Junior Resident will be entitled for one day's casual leave after putting in one month service. However, the contract employee will also be entitled for 12 weeks Maternity Leave and 10 day's Medical Leave. He/She shall not be entitled for Medical Re-imbursement and LTC etc. No Leave of any other kind except above is admissible to the contractual appointee Professor/Associate Professor/Asstt. Professor/Tutor/ Senior Resident/Junior Resident. Provided that the un-availed Casual Leave and Medical Leave can be accumulated upto the Calendar Year and will not be carried forward for the next Calendar Year.
9. Unauthorized absence from the duty without the approval of the Controlling Officer shall automatically lead to the termination from the contract. Contract Appointee shall not be entitled for contractual amount for the period of absence from duty.
10. Transfer of a contract appointee will be permitted from one place to another after putting three years of service at one place.
11. Selected candidate will have to submit a certificate of his/her fitness from Medical Board, DDU Hospital, Shimla-1. Woman candidate pregnant beyond 12 weeks will stand temporarily unfit till the confinement is over. The woman cand
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