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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
Satyen Vaidya, J.
Dr. Rajeev Sandal - Petitioner
Vs.
State of H.P. & Ors. - Respondent
CWP No. 2862 of 2023 a/w CWP No. 415 of 2024
Decided On : 28-03-2024
NOC - Service Discrimination - Post Graduation and Super Specialty Policy - [Post Graduation and Super Specialty Policy] - The court discussed the Post Graduation and Super Specialty Policy applicable in the State of Himachal Pradesh, emphasizing the requirement for medical officers to execute a bond to serve the state for a specified number of years. The court highlighted the distinction between 'State of Himachal Pradesh' and 'Government of Himachal Pradesh' and concluded that serving at AIIMS Bilaspur within the geographical boundaries of the state would not violate the bond or the policy. The court also referenced a similar case to support its decision.
Fact of the Case:
The petitioner, a medical officer, sought NOC to serve at AIIMS Bilaspur, but was refused by the respondents. The petitioner was also forced to file a separate petition seeking quashing of an order by AIIMS Bilaspur cancelling his appointment.
Finding of the Court:
The court found that the petitioner was being discriminated against and had been victimized by the delay and refusal of the NOC, leading to the cancellation of his appointment by AIIMS Bilaspur.
Issues: Discrimination in granting NOC, refusal of NOC without lawful reason, and victimization of the petitioner due to delay and refusal of NOC.
Ratio Decidendi: The court held that serving at AIIMS Bilaspur within the geographical boundaries of the state would not violate the bond or the policy, and referenced a similar case to support its decision.
Final Decision: Both petitions were allowed, directing the respondents to issue NOC to the petitioner within one week and quashing the order by AIIMS Bilaspur. The petitioner was also directed to be appointed as Assistant Professor immediately upon production of the NOC.
JUDGMENT :
Satyen Vaidya, J.
These two petitions have been heard and are being decided together as common questions of facts and law are involved.
2. Petitioner during his service with the department of Health and Family Welfare, Government of H.P., qualified his post graduation and thereafter Super Specialty in Clinical Hematology.
3. Respondent No.4 advertised various posts including one post of Assistant Professor (Medical Oncology/Clinical Hematology) in October, 2022. Petitioner applied for the above post and was found provisionally eligible. Petitioner was refused NOC by respondents No.1 to 3 on the ground that he had already undertaken to serve the State of H.P. by furnishing a bond or to forfeit the amount of bond.
4. Petitioner approached this Court by way of instant petition. On 23.05.2023, an interim order was passed by this Court directing respondent No.1 to provisionally issue No Objection Certificate in favour of petitioner, so as to enable him to participate in the recruitment process for the post of Assistant Professor (Medical Oncology and Hematology) in All India Institute of Medical Sciences Bilaspur, (H.P.). Petitioner participated and was selected but he could not join till final NOC was not issued by respondent No.1.
5. The claim of petitioner in CWP No. 2862 of 2023 is that he is being discriminated by respondents No.1 to 3, whereas similarly situated incumbent i.e. Dr. Kuldeep Thakur designated Assistant Professor of ENT IGMC, Shimla has been granted NOC subject to condition that he will serve the State of Himachal Pradesh through AIIMS, Bilaspur.
6. Time elapsed during pendency of the instant petition and in the meanwhile AIIMS, Bilaspur i.e. respondent No.4 issued communication dated 30.12.2023 informing the petitioner that since he had failed to join the offered post within the stipulated period of time and even after extension of joining time, his appointment was treated as cancelled. The above decision of respondent No.4, forced the petitioner to file CWP No. 415 of 2024 seeking quashing of order dated 30.12.2023 issued by AIIMS Bilaspur.
7. Respondents No.1 to 3 by way of their reply in CWP No. 2862 of 2023 have contested the claim of petitioner on the ground firstly that the petitioner while proceeding on study leave to pursue the higher studies has executed bond to serve the State after completion of his DM in Clinical Hematology course. Being sponsored candidate of the State, he was paid leave salary in lieu of three years' study leave. Secondly, the case of Dr. Kuldeep Thakur has been sought to be distinguished on the ground that at the time of issuance of NOC in favour of Dr. Kuleep Thakur, the AIIMS Bilaspur was in formative stage, whereas the situation has changed now and lastly plea has been raised that the petitioner has been suitably adjusted in IGMC, Shimla and his services are required there.
8. I have heard learned counsel for the parties and have also gone through the entire record carefully.
9. The Government of Himachal Pradesh has notified Post Graduation and Super Specialty Policy for regulating the admissions to various Post Graduation and Super Specialty Courses in Medical Education applicable in the State of Himachal Pradesh.
10. The bond is required to be executed by a Medical Officer to serve the State of Himachal Pradesh for specified number of years in case he avails opportunity and proceeds on leave for Post Graduation or Super Specialty courses. Clause-6 of the Policy envisages the furnishing of bond to serve the State for at least five years. The petitioner has also submitted a bond in terms of Clause-6 of the Policy.
11. Noticeably, the bond is executed to serve the State. State has been defined in Clause 3.1.15 of the Policy as “State of Himachal Pradesh”. Government has separately been defined in Clause 3.1.8 as “Government of Himachal Pradesh”. Petitioner is seeking NOC to serve at AIIMS, Bilaspur which falls in the State of Himachal Pradesh. It being so, it is not understandab
AI
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An employee's resignation cannot be denied based on staffing shortages, especially after the bond period has expired, affirming the right to career progression.
The right to education during ongoing disciplinary proceedings cannot be denied; the 2017 Resolution permits higher studies irrespective of a candidate's suspension status.
The main legal point established in the judgment is that the rejection of a representation for NOC must be in compliance with constitutional provisions, and any arbitrary or discriminatory action in ....
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The condition of mandatory service of four/five years as provided in Clauses 6.1 and 11.1.2 of the 2019 Policy is unreasonable.
The court emphasized the importance of upholding the conditions stipulated in the bond and held that the respondents cannot act in breach of the condition imposed and enforce conditions of the bond b....
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