RAKESH PANWAR, SON OF SHRI HARI RAM PANWAR vs STATE OF HIMACHAL PRADESH THROUGH PRINCIPAL SECRETARY (HEALTH), TO THE GOVERNMENT OF HIMACHAL PRADESH

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(HP) 588

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
TARLOK SINGH CHAUHAN, SATYEN VAIDYA, JJ.
DR. RAKESH PANWAR, SON OF SHRI HARI RAM PANWAR - PETITIONER
Vs.
STATE OF HIMACHAL PRADESH THROUGH PRINCIPAL SECRETARY (HEALTH), TO THE GOVERNMENT OF HIMACHAL PRADESH - RESPONDENTS
CIVIL WRIT PETITION NO. 4210 OF 2020 A/W CIVIL WRIT PETITION NO. 4504 OF 2021
Decided On : 17-11-2021

Advocates:
Advocate Appeared:
For the Appellant :TARA SINGH CHAUHAN, ADVOCATE
For the Respondent:AJAY VAIDYA SR. ADDITIONAL ADVOCATE GENERAL)

Headnote:
Himachal Pradesh Medical Education Service Rules, 1999 - Post of Assistant Professors - Cadre - Seniority - Appointments of petitioners were made as Medical Officers in Health and Family Welfare Department, Government and were subsequently promoted as Block Medical Officers on their respective turn as per seniority - Petitioners during their service tenure acquired post graduation qualification in their respective subjects and also acquired teaching experience by working as Tutor and Senior Resident respectively - Fact of matter remains that petitioners are serving in cadre of Block Medical Officers (BMOs) - Secretary (Health) to Government of Himachal Pradesh requisitioned service particulars along with other necessary documents of all eligible and willing GDOs/MOs for consideration on promotion to post of Assistant Professors in IGMC - Names of petitioners along with relevant documents were stated to have been forwarded to competent authority for consideration - Whether official respondents have rightly or wrongfully refused to consider candidatures of petitioners for post of Assistant Professors in view of notification dated remains only of academic interest – Held, Nonetheless in considered view of Court ,refusal by respondents to candidatures of petitioners for post of Assistant Professors on basis of notification dated is not justified for reason that firstly there is nothing on record that petitioners were afforded any opportunity to exercise option strictly in accordance with notification dated at time of promoting them as BMOs and secondly it is highly doubtful mode of appointment by selection from members of Himachal Pradesh Civil Medical Service (General Wing) can be said to be a promotional channel - A plain reading of Recruitment and Promotion Rules for post of Assistant professors, it is abundantly clear that channel of promotion was available only to Lecturers with requisite numbers of service to their credit and alternative mode was a mode of appointment by selection from a limited class confined to members of Himachal Pradesh Civil Medical Service (General Wing) with requisite qualifications - Petitions are dismissed

ORDER :

Both these petitions have been heard and are being decided together, as common question of facts and law are involved.

2. Petitioners are aggrieved against non-consideration of their names for promotion to the post of Assistant Professors in the Departments of Pathology and Surgery respectively in Indira Gandhi Medical College, Shimla (for short, “IGMC”).

3. It is not in dispute that initially the appointments of the petitioners were made as Medical Officers (for short, “MOs”) in Health and Family Welfare Department, Government of Himachal Pradesh and were subsequently promoted as Block Medical Officers (for short, “BMOs”) on their respective turn as per seniority. The petitioners during their service tenure acquired postgraduation qualification in their respective subjects and also acquired teaching experience by working as Tutor and Senior Resident respectively. The fact of the matter remains that the petitioners are serving in the cadre of Block Medical Officers (BMOs).

4. On 26.6.2021, Secretary (Health) to the Government of Himachal Pradesh requisitioned service particulars along with other necessary documents of all eligible and willing GDOs/MOs (Specialist/Super Specialist) for consideration on promotion to the post of Assistant Professors in IGMC. The names of the petitioners along with relevant documents were stated to have been forwarded to the competent authority for consideration. Petitioner in CWP No. 4210 of 2020 applied for the post of Assistant Professor in Department of Pathology and petitioner in CWP No. 4504 of 2021 applied for the said post in Department of General Surgery.

5. Petitioners were eventually not considered for the above noted posts of Assistant Professors on the ground that Department of Personnel, Government of Himachal Pradesh had issued instructions initially on 1.9.2010 and subsequently on 3.12.2014, whereby the procedure for the post having more than one channel of promotion from the feeder post to next higher post(s) was prescribed. According to official respondents, since petitioners had once exercised their options to be promoted as BMOs, they were not entitled for being considered to be promoted as Assistant Professors.

6. Appointment to the post of Assistant Professors in IGMC is governed by the Himachal Pradesh Medical Education Service Rules, 1999 (for short, “1999 Rules”). The channel for appointment to said post is 50% by promotion, failing which by direct recruitment and 50% by direct recruitment. The relevant extract of the Recruitment and Promotion Rules for the post of Assistant Professors is as under:

Name of post	Age	Mode of recruitment	Eligibility
Assistant Professor (Class –I) Gazetted.	Not applicable	50% by way of promotion failing which direct recruitment	By promotion from amongst the lecturers, who possess 3 years regular service or regular combined with adhoc service (rendered upto 31.3.1998) if any in the grade in the concerned specialty failing which by appointment (by selection from amongst the members of HP Civil Medical Services (General Wing) having recognized PG Degree or its equivalent qualification in the concerned specialty and possesses at least 3 years teaching experience as lecturer/ registrar/ demonstrator/tutor/Senior Resident/Chief resident in the concerned specialty after doing post graduation in the specialty failing which by direct recruitment.

7. Thus, the eligibility for 50% quota of promotion is firstly from the Lecturers, who possessed three years regular service or regular combined with adhoc service (rendered up to 31.3.1998), if any, in the grade in the concerned specialty. In case of non-availability of any candidate in this category, the above noted rule provides for appointment, by selection from amongst the members of Himachal Pradesh Civil Medical Service (General Wing) ( for short, “G

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