IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.W.P -T 2199 of 2008. Judgment reserved on: 23.7.2009. Decided on: 31st July, 2009 _______________________________________________________ Dr. Ashu Bhardwaj and another ……..Petitioner Versus State of H.P and others ……..Respondent. Coram Hon’ble Mr Justice Deepak Gupta, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? yes For the appellant : Mr. Dilip Sharma, Advocate. For the respondent : Mr. R.K. Bawa, Advocate General, with Mr. R.M. Bisht, Dy. Advocate General, for respondent Nos. 1 and 2. Mrs. Ranjana Parmar, Advocate, for respondent Nos. 3 to 6. ____________________________________________________ SURINDER SINGH, J : By means of the present petition, the petitioners have sought the following reliefs:- “(i) that the impugned notification at Annexure A-16 dated 9.3.2001 may be quashed and set aside being violative of Articles 14 and 16 of the Constitution. (ii)That if during the pendency of this original Application, respondent No. 3 to 6 are absorbed/ regularized as Lecturers (Dentistry) retrospectively and then regularized as Assistant professor (Dentistry) retrospectively, adversely affecting the interest of applicant and then they are considered for further promotion, in that event their such retrospective absorption/regularization as Lecturer/Assistant professor (Dentistry) and further promotion may also be Whether reporters of the Local papers are allowed to see the judgment? - 2 - quashed and set aside and applicants may be held entitled to further promotion in their place with all consequential promotion. (iii) that the respondent Department may be directed to regularize the applicant No. 1 against the post of Associate Professor from the date she became eligible for such promotion with all consequential benefits.” We have heard the learned counsel for the parties and have examined the record carefully. The brief facts emerging from the record are that at the time of initial start of the State Government Dental college, there were only two faculty members i.e., one Professor and another Assistant Professor in the Erstwhile Dental Wing of Indira Gandhi Medical College (I.G.M.C.), Shimla. The Government could not immediately create other teaching faculties in various disciplines like periodontics, prosthodontics, Paedodontics etc. in the B.D.S. course to meet the requirement of the Dental Council of India (D.C.I.). Since there was an acute shortage of the teaching staff, therefore, an urgent need was felt to provide the teaching faculty. The State government took a decision to deploy certain Dental Surgeons already working in the ‘Civil Dental Health Service Cadre’ (non-teaching side) possessing the degree of post graduation, for teaching work and patient care in the said Dental college at its inception. Pursuant to the aforesaid decision, despite the fact that there was no provision in the H.P. Health Service Rules, 1974, which were in vogue, private respondents were deployed as lecturers (Dentistry). - 3 - In the month of August, 1994, the Public Service Commission advertised one post of Assistant Professor (Dentistry), which was already added into the table of the 1974 Rules above, by an amendment vide notification No. GSR/1-71/69-H& FW dated 9.11.1978. Dr. (Mrs.) Ashu Bhardwaj (Petitioner) applied for the said post, but respondent Nos. 3 to 6 were not eligible as they fell short of the requisite teaching experience. Petitioner No. 1 appeared in the interview on 19.9.1994 and the State Commission recommended to the Government for her appointment to the post of ‘Assistant Professor’. Since her appointment got delayed she made a representation. In the meantime, “ The Himachal Pradesh Medical Education Services Rules, 1995” (Annexure A-6) were notified which repealed the 1974 Rules. These rules came into force on and with effect from on 28.4.1995. These rules pertained only to the teaching wing in which no category of ‘lecturer’ existed. These Rules introduced a 3 tier system of Professor, Associate Professor and Assistant Professors. The petitioner No. 1 was appointed as ‘Assistant Professor’ (Dentistry) vide notification dated 14.6.1995 (Annexure A-7), pursuant to that she joined the post on 28th June, 1999. The State government vide notification (Annexure A-8) dated 11.4.1997 also promoted respondent Nos. 3 to 6 ‘Assistant Professor’ on ad-hoc basis in their respective departments till further orders with a rider that this would not confer any right of continuation, regularization, promotion and confirmation etc. on them. - 4 - On 16th February, 1999, the State Government issued notification (Annexure A-9) promoting petitioner No.1 along with respondent Nos. 3 to 6 in the 3 tier system as ‘Associate Professors’ (Dentistry) on ad-hoc basis, placing petitioner No. 1 junior to private respondents. Although she had joined the said post of ‘Assistant Professor’ on 16.2.1999 prior to respondent Nos. 3 to 6 against this she represented to the Secretary (Health) which was accepted and the petitioner Dr. (Mrs.) Ashu Bhardwaj vide notification dated 24.11.1999 was placed senior to them and designated as ‘Professor’ (Periodontics) and joined as such on 24.11.1999 itself. On 22.11.1999 “the Himachal Pradesh Medical Education Services Rules, 1999” were notified which repealed the H.P. Medical Education Rules, 1995. These rules provided for 8 posts of lecturers (Dentistry), 12 posts of Assistant Professors (50% by promotion and 50% by direct recruitment) and one post of ‘Associate Professor’ (Dentistry) and 10 posts of Professor (Dentistry). The first amendment to it was carried out vide notification dated 4.3.2000. An advertisement was issued by the State Public Service Commission on 29.4.2000, inviting the applications, inter alia, for one post of ‘Assistant Professor’ (Dentistry). Petitioner No. 2 Dr. Yogesh Bhardwaj, who was having the requisite qualification applied for the said post and got selected and was appointed as ‘Assistant Professor’ (Dentistry). But before he could join, the State Government had already taken a decision to safe guard the interest of the respondents-doctors whose services were taken in dire need and to absorb them with retrospective effect. The State introduced Rule 20-A in - 5 - “The Himachal Pradesh Medical Education Services Rules, 1999” vide notification (Annexure A-16) dated 9.3.2001. The said notification reads as under:- “Government of Himachal Pradesh Department of Health & Family Welfare. No. Health-A (A) (3) 6/1998 Dated Shimla 171 002 the 9.3.2001 NOTIFICATION. Whereas the Himachal Pradesh Medical Education Service Rules, 1999 were notified vide Notification No. Health-A (A) (3)-6/98 dated 2.12.1999 and the H.P. medical Education Service Rules, 1995 were repealed thereunder; AND whereas certain persons who were taken on deputation or were deployed, were to be absorbed in the H.P. Government Dental College, Shimla in public interest from retrospective effect as per decision of state government; AND whereas before implementing the said decision of the State govt., the H.P. Medical Education Service Rules, 1995 were repealed and H.P. Medical Education Service Rules, 1999 came into force. AND whereas; in order to implement the decision of the State Govt. it is expedient and necessary to amend the H.P. Medical Education Service Rules, 1999 from retrospective effect; Now, therefore, the governor of Himachal Pradesh in exercise of the powers conferred upon him under proviso to article 309 of constitution of India and in consultation with the Himachal Pradesh Public service Commission, is pleased to make the following rules to amend the Himachal Pradesh medical Education Service Rules, 1999 notified vide this Department’s notification No. Health-A (A) (3)-6/98 dated 2.12.1999, namely:- SHORT TITLE AND 1. (1) These Rules may be called the COMMENCEMENT Himachal Pradesh medical Education Service (Second Amendment) Rules, 2001. - 6 - (2) These Rules shall be deemed to have come into force w.e.f. 1.7.1995. INSERTION OF RULE 20-A After Rule 20 of the Himachal Pradesh Medical Education Service Rules, 1999, the following shall be added namely: 20A. The incumbents (Dental Surgeons) already taken on deputation or deployed by the govt. at the time of inception of H.P. Government Dental College in public interest, shall be given option for absorption in Dental College and the incumbents who opt for absorption and if accepted by the Government, shall form initial cadre of Lecturers (Dentistry) in Dental College from the date of their joining in the College on deputation. The lecturers (Dentistry) of various faculties finally absorbed and had formed initial cadre in Dental College as referred to above, shall further on the commencement of these Rules be deemed to have been appointed to the Service as Assistant Professors (Dentistry).” By order Commr.-cum- Secy. (Health) to the Govt. of Himachal Pradesh.” The petitioner No. 2 joined as Assistant Professor (Dentistry) on 21.4.2001. On 23.4.2001, the petitioner Dr. (Mrs.) Ashu Bhardwaj, made a representation (Annexure A-17) to the Secretary (Health) Himachal Pradesh apprehending that this amendment might effect her and the respondents- doctors would be placed senior to her. The petitioner No. 2 did not make any representation but joined his wife, the petitioner No. 1 and they jointly filed O.A. No. 550 in April, 2002 before the erstwhile H.P. State Administrative Tribunal. The case of the petitioners pure and simple is that they were selected and appointed as Assistant Professor in accordance with the R & P Rules, which existed at - 7 - the time of his selection. Therefore, the respondents cannot be placed over and above them in seniority by the above notification. Shri Dilip Sharma, learned counsel for the petitioners argued with vehemence that in 1974 Rules, there was no post of lecturer (Dentistry). The appointment of the private respondents made by executive power was only a time gap arrangement, which could not have been otherwise exercised to fill in the gaps. Such instructions cannot and should not supplant the law but it can only supplement the law. Further the said powers do not clothe the executive government with the power to relax, recruit or even to regularize such appointments. It is also argued that the appointment of respondent Nos. 3 to 6 itself is in violation of the Rules or the Constitution, therefore, this illegality cannot be legalized. Therefore, the inductionof Rule 20-A in 1999 Rules is wrong and illegal. He placed his reliance on the ratio of the decisions rendered by the apex Court in R.N. Nanjundappa vs. Thimmaiah and another [AIR 1972 SC 1767] and Secretary, State of Karnataka and others versus Uma Devi (3) and others [(2006) 4 SCC 1]. and submitted that both the petitioners were appointed as per the procedure under the statutory Rules and the appointment of the private respondents was wrong and illegal from the very inception. Therefore, the private respondents could not be placed above the petitioners. Contra Shri R.M. Bisht learned Dy. Advocate General, while referring to his reply affidavit forcefully argued that the services of the respondents-doctors were pressed into service by the State government in its dire need, at the very inception - 8 - when the State Dental College was started. There was an acute shortage of teaching staff. At that time, the State government took a decision to deploy the ‘dental-surgeons’, who were working in the Civil Dental Health Services cadre, to satisfy the requirement of the D.C.I. The said doctors who were post-graduate in various disciplines taught the B.D.S. classes for a long time very efficiently. He further ventilated that although there were no post of lecturers (Dentistry) in 1974 Rules, but an adequate provision was made in 1995 Rules which provided 8 posts of lecturers in Dentistry and 9 posts of Assistant Professors (Dentistry). 50% quota for Assistant Professors was kept for promotees and 50% for direct recruits. Further, that the promotions were given to the said lecturers as the Assistant Professors and thereafter as ‘Associate professors’ which also included petitioner No. 1. She was also placed senior to the respondent doctors therefore, no cause of action survived in her favour to file the petition. It is further argued that respondents are a class within themselves and one time exemption was accorded by the Government as they had served the State in a dire-need. Thus the respondent-doctors who are post-graduates in their respective disciplines, were absorbed retrospectively by making an adequate provision in the Rules, prior to the joining of petitioner No. 2 and no vested right had accrued to him nor is effected in any manner. It is also argued that the absorption Rule 20-A was made in exercise of its powers by the Government which is legislative in character having force of law and it has given one time relief and solved the human problem. According to Mrs. Ranjana Parmar, counsel for the private respondents, it was only a one - 9 - time measure and at the same time, respondents were having essential qualifications, the State Government examined their matter while dealing with the diverse problems, therefore inclusion of Rule 20A was to attain and achieve a particular object cannot be said to be unfair. She placed her reliance on State of Karnataka and another vs. B. Suvarana Malini and another (2001) 1 SCC 728. It is admitted that the private respondents were post- graduates in teaching work and patient care. They were already serving as Dental surgeons in Civil Dental Health Service Cadre (non-teaching side). (They had put in long years of service but were not qualified to be appointed since they lacked teaching experience). They were deployed in the Dental College at its inception by the State Government to carry out teaching work as lecturers because of the acute shortage of teaching staff. This position is made clear in the cabinet note Annexure 3/D. The State Government took effective steps for creating all necessary infrastructure including the building Hostel and equipment etc. and also to provide the adequate staff to meet the norms of D.C.I., but there was over all shortage of medical teachers and only two faculty members of the Civil Dental Wing of the IGMC, one professor and one Associate Professor were available and no other post could be created immediately. The State Dental College was lacking teaching staff in periodontics, prosthodontics, Paedodontics etc. Against this background, the State Government took a decision to induct/depute the “Dental Surgeons” working in the Civil Dental Health Services Cadre (non-teaching) staff, who fulfilled the requisite qualification for teaching work/patient care - 10 - so as to satisfy the D.C.I. norms in the new Dental College at its inception. The respondents-doctors rendered their services on teaching side and taught B.D.S. students. They were given ad- hoc promotions of Assistant Professors as aforesaid to meet the requirement of D.C.I. The State Government also amended the 1974 Rules making appropriate provision to teaching category which did not exist earlier in Dentistry and provided 3 tier system in 1995 Rules as aforesaid but even these Rules did not protect the services of private respondents who opted to render their services in acute emergent situation of starting the State Dental College. Against this backdrop, the State Government decided to incorporate a special provision in the 1999 Rules retrospectively i.e. w.e.f. 1.7.1995 to protect them. Since Dr. (Mrs) Ashu Bhardwaj is a regular appointee as Assistant Professor w.e.f. 28.6.1995 whereas as per the special provision aforesaid (Rule 20-A) the respondents- doctors would be deemed to have been appointed as Assistant Professors w.e.f. 1.7.1995 therefore, in all circumstances, petitioner No. 1 would remain senior to respondent Nos. 3 to 6. This position is also not disputed by respondent Nos. 1 and 2. The perusal of the record reveals that this grouse of petitioner No. 1 was also redressed after considering her representation by placing her senior to all the private respondents as ‘Associate Professor’ to Professor (Periodontics) vide notification No. HFW-b (2) 10/95 dated 24th Nov. 1999. Thus, the induction of Rule 20-A aforesaid does not take away her any vested right. Therefore, in the above circumstances the induction of Rule 20-A , aforesaid in appointing and regularizing the services - 11 - of respondent Nos. 3 to 6 for valid reasons cannot be said to be illegal when the teaching field in Dentistry was not occupied by any statutory Rules. Therefore, neither the ratio of R.N. Nanjundappa nor of Satchidananda Mishra or Uma Devi (2006) 4 SCC 1 (supra) is applicable in the facts of this case. In fact, the case in hand involves not only the question of law but also a human problem, in as much as respondent Nos. 3 to 6 are concerned. At the cost of repetition we have noted that they came forward when the State was in their dire need of their services to start the College in conformity with D.C.I. norms, they were deployed as lecturers by the State Government. All of them were well qualified having the Post Graduate Degree in the different disciplines in Dentistry. They were already working as Dental Surgeons for more than a decade in the Dental Wing of the I.G.M.C, as stated above. The State Government taking into account the entire background considered their grievances and difficulties. If the State Government would not have made appropriate provision at this stage, they would have been left in lurch and their career would have jeopardized for no fault on their part. In such circumstances, in our considered opinion the respondents- doctors formed a class by themselves and the rule giving them the benefit as one time measure to solve the impasse, may be on account of inaction on the part of the State Government in taking requisite steps for filling up the vacancies, cannot be said wrong and illegal. Further, the State Government inducted Rule 20-A ibid in exercise of its powers under Article 309 of the Constitution, which is of a legislative character to tide over one time situation qua the respondents alone which is a - 12 - separate class. They were not unqualified. The respondents were already post-graduates in different disciplines and have been serving fairly since lone even before the appointment of the petitioners. In State of Karnataka and another vs. B. Suvarana Malini and another (2001) 1 SCC 728 the Supreme Court observed that the legislature as well as the Executive Government, while dealing with diverse problems arising out of an infinite variety of human relations must of necessity have the power of making special laws, to attain any particular object and to achieve that object it must have the power of selection or classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not per se amount to discrimination. Thus, when we have examined Rule 20-A aforesaid from the above standpoint while considering the circumstances under which it was framed, we see no wrong in it from an angle that a big human problem was solved to give one time measure to a particular class which could not have been otherwise protected. Thus cannot be said to be either discriminatory or offending Article 14 or 16 of the Constitution. Accordingly, we find rationality in issuing the impugned notification Annexure P- 16 dated 9.6.2003, and further absorption of respondent Nos. 3 to 6 and their regularization retrospectively as indicated in Annexure P-16 cannot be said to have adversely affected any of the petitioners because petitioner No. 1 was already placed senior to respondent Nos. 3 to 6 as Assistant /Associate Professor and thereafter as Associate Professor/Professor from the date she was found eligible and further that petitioner No. 2 had joined as Assistant Professor after coming into force the - 13 - notification Annexure P-16, inducting Rule 20-A in 1999 Rules. Thus no vested right of petitioner No. 2 could be said to have been impeached or infringed in any way. We also feel that the petitioners are estopped from making any challenge to the notification in question. On 16.2.1999, petitioner No. 1 and the private respondents were all promoted as Associate Professors. The petitioner No. 1 was shown at the bottom of the list. She made a representation against this order on 26.3.1999. She did not challenge the promotion of the private respondents as Associate Professors. Her only grievance was that she is senior to the private respondents. Her representation was accepted and she was shown to be the senior most. Even during the course of hearing, the State as well as the private respondents have candidly admitted that petitioner No. 1 is the senior most professor in the Dental College and ranked senior to the private respondents. As far as petitioner No. 2 is concerned, he had not even joined service as Assistant Professor by the time the private respondents had been promoted as Associate Professors. The notification under challenge was issued prior to his appointment. He joined service knowing fully well that such a notification has been issued. He cannot now claim that he is senior to the private respondents. In view of the aforesaid discussion, no relief can be granted to any of the petitioners. The petition is disposed of accordingly. No orders as to costs. (Deepak Gupta),J July 31, 2009 (Surinder Singh),J (cm)