IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1744 of 2009 Decided on : 23.2.2011 Dr. Poonam Kaushal ..… Petitioner. Versus State of Himachal Pradesh and others …… Respondents Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. Tarlok Chauhan, Advocate. For respondents : Mr. J.S. Guleria, Asstt. Advocate General, for respondents No. 1 and 2. Mr. D.K. Khanna, Advocate, for respondent No.3. Mr. Ramakant Sharma, counsel for respondent N o. 4. V.K.Sharma, Judge (Oral) The petition has been filed for grant of the following substantive reliefs:- “(a) That the respondents be directed to appoint the petitioner as Ayurvedic Doctor Class-II (in fact Homoeopathic Doctor Class-II) in terms of the recruitment test fixed for 16/6/1997 and thereafter in terms of the advertisement dated 5/12/1998. (b) That the petitioner after being appointed be allowed all consequential benefits including 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 her seniority and arrears of pay and allowances etc.” 2. The respondents No. 1 and 2 have taken the following stand vide paras 2, 3, 5 and 6 of the preliminary submissions:- “2. That as per record as on March, 1999, 30 number of candidates other than present Petitioner possessing 4 ½ years’ Diploma in Homeopathy and other requisite qualifications were also registered with the Central Council of Homeopathy, Himachal Pradesh. So the reliefs as claimed by the Petitioner cannot be granted exclusively to her on the grounds taken by her. Here it is also submitted that O.A. No. 1114/97 has not only been filed by the Respondent No.4 but other candidate(s) were also Petitioners in that case as is evident from Annexure P-4 enclosed with the present Petition. 3. That the Petitioner has initially got her name registered with the State Council of Homoeopathic System of Medicine, Himachal Pradesh, in the year 1989 but has not renewed her registration/membership since 1999 as is evident from the Annexure R-1. Her name has been/was temporarily removed from the State Register. The yearly renewal of membership is mandatory/essential under the relevant rules/instructions otherwise she could not carry out private practice and was even ineligible for getting employment either in the private sector or Government sector. 3 5. That prior to year 2000 the posts of Homeopathic Doctors were Class-II (Gazetted) and appointments were made as per provisions of R&P Rules prevalent at that time i.e “100% by direct recruitment”. The Department of Personnel issued instructions number Per (AP)-C-B(2)-I/98 dated: 10.03.1999 vide which it was decided that provision of 50% recruitment on batchwise basis & 50% by direct recruitment may be inserted in the R&P Rules of various Class-II posts including Homeopathic doctors. On the basis of these instructions, the pending requisition of 3 posts placed with the Respondent No.3 was withdrawn during the year 1999. But later on in the year 2000, the said post were declared Class-I (Gazetted) in the pay scale of Rs.7220- 11660 and recruitment provision was again amended during the year 2004 by inserting 100% by direct recruitment. 6. That the total sanction cadre strength of Homeopathic doctors is 14 posts out of which 11 were filled in accordance with the recommendations of Respondent No.3 and 3 posts (General-01, SC-01, ST-01) are lying vacant due to non availability of suitable candidates as per information of Respondent No.3. However, as per this Department there is no requisition sent for filling up of these posts after the withdrawal of earlier requisition in 1999.” 4 3. It is averred as under on behalf of respondent No. 3 vide para 5 of the preliminary submissions and para 7 on merits:- “5. The petitioner had also filed O.A. No. 1284/1997 in HPAT challenging the R&P Rules and subsequent relaxation of the Govt. as well as rejection of her candidature, but there was no direction to interview her as such she was not interviewed. The said OA was transferred to the Hon’ble Court after scrapping of HPAT and decided on 20-04- 2009 (Annexure-P/6 of petition). 7. That the contents of this para of the petition are wrong and hence denied. The petitioner is not similarly situated as the recommended candidate i.e respondent No.4. In the case of respondent No.4 there was direction of the Hon’ble HP Administrative Tribunal to interview him and his name was recommended to the Govt. for appointment after final decision allowing his OA (Annexure P/4), where as there was no such direction in the case of the petitioner. As such as the petitioner is not similarly situated in this matter.” 4. The case set up by respondent No.4 vide para 1 of the reply is as under:- “That the claim of the petitioner is misconceived and she has wrongly arrayed the replying respondents as party and the writ petition deserves dismissal against the answering respondent. The petitioner has not brought on record her certificate of qualifications and has thus withheld the material information from this Hon’ble Court. The fact 5 remains that the petitioner has passed 3 ½ years diploma in Homeopathy and 6 months internship and she had got admission in the said diploma course in the year 1983 i.e after the amendment in Recruitment and Promotion Rules. As such she does not come within the purview of relaxation clause as well. The contrary the replying respondent has passed 4 ½ years diploma in Homeopathy and had got admission in the course in the year 1982 and the amendments effected in the year 1983 were not applicable in his case as such the Recruitment and Promotion Rule prevalent at the time of the claim of the replying respondents were different than the amended Recruitment and Promotion Rules applicable to the petitioner. She cannot claim relief on the analogy of the replying respondent.” 5. The learned counsel for the petitioner submits at the very outset that the case of the petitioner is covered under judgment dated September 29, 1999, Annexure P-4, rendered by the erstwhile H.P. State Administrative Tribunal in O.A. No. 1114 of 1997, titled Dr. Juggal Kishore & another vs. State of Himachal Pradesh and others, operative part whereof contained in the last two paragraphs of the order is as under:- “We have heard the learned counsel of the parties and considered their arguments. It is on record that relaxation has been given in the case of those candidates who had obtained Four Year diploma upto 1983 and such candidates have been treated at par with others having Five and half years degree to their credit. This has apparently been done because the respondents wanted to give a fair treatment to these candidates who had 6 already completed their diploma. On the same analogy, one time relaxation could be made for those also who were already in the process of acquiring such diplomas, so that the applicants are treated similarly as their predecessors. This Tribunal has already by way of interim relief allowed the applicants to appear in the tests fixed for June, 16, 1997. On the conditions contained in preceding para, we accept the Original Application and direct that the result of the test may be declared and further action taken on the basis of this result with no order to costs.” 6. Reliance has also been placed on judgment dated May 5, 2010, passed by a Division Bench of this Court in CWP No. 1807 of 2010, titled Prem Raj vs. State of H.P. & others and connected matters, wherein the following principle of law has been laid down along with the ensuing direction vide paras 2 and 3 of the judgment:- “2. It is seen that the first respondent has rejected the representation on the ground that the decision in CWP (T) No. 2346 of 2008, Madan Gopal versus State of H.P and another, decided on 13-3-2009, would apply only to the petitioners therein. We are afraid that the first respondent has not understood the law in its correct perspective. In Annexure P-7 judgment, this Court held that in view of the decree passed by the Sub Judge Ist Class, Hoshiarpur, the Laboratory Attendants have been held entitled to the pay scale of Rs. 950-1800, and being similarly situated person, the petitioner is covered by Annexure P-7 judgment and was granted the 7 benefit also. Thus, the Government has accepted in principle the entitlement of the Laboratory Attendants for the pay scale of Rs. 950-1800/-. Once a principle has been settled by the Court in one case and the same principle having been accepted by the State, it is not necessary that all the persons similarly situated, should approach the Court and obtain individual relief. That would only lead to multiplicity of proceeding and docket explosion apart from increasing the workload on administrative side of the Government. Therefore, there will a direction to the Chief Secretary to the State of Himachal Pradesh to see that a judgment in the case of an incumbent, if accepted on principle by the Government, is implemented in the case of all the similarly situated persons without for obtaining individual judgments- decrees. We are compelled to issue such a direction since we found that in several judgments, the Government has taken such a stand that a judgment would apply only in the case of the petitioner before the court. The Government is entitled to such a stand in case the judgment applies only to individual concerned and that judgment is in personam, but if the judgment even in individual case is on principle and if that principle as such is followed by the Government in the case of one employee, that benefit should be extended to all the similarly situated persons. 3. The Chief Secretary will issue appropriate guidelines in this matter to the Administrative Departments within two months.” 8 8. In view of the above, if on facts, the case of the petitioner is covered under the aforesaid order dated September 29, 1999, in OA No. 1114 of 1997, Annexure P-4 and in case the same has attained finality, she shall also be treated similarly without any discrimination and the benefit of the said judgment shall also be extended to her on the analogy of the above principle of law laid down by this Court in the aforesaid CWP No. 1807 of 2010 and connected matters and taking into consideration the letter dated 13.11.1998, Annexure P-3, sent by the Commissioner-cum-Secretary (Ayurveda), Government of Himachal Pradesh, to the Secretary, HP Public Service Commission, whereby, one time relaxation in similar cases was granted, within six months from the date of production of copy of this judgment by the petitioner along with copies of the aforesaid order dated September 29, 1999 of the erstwhile Tribunal in OA No. 1114 of 1997, Annexure P-4, judgment dated May 5, 2010, of this Court in CWP No. 1807 of 2010 and the connected matters and the aforesaid letter dated 13.11.1998, Annexure P-3. 9. The petition as also pending CMPs, if any, stand disposed of in the above terms. (V.K. Sharma) Judge 23rd February, 2011. Lsp*