IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No.16 of 2007 alongwith CWPs No.30, 43, 45, 48, 61 and 243 of 2007 Reserved on : 9th March, 2007 Date of Decision: 15th March, 2007 CWP No.16 of 2007 Lokesh Gupta and others vs. State of H.P. and ors. CWP NO.30 of 2007 Dr.Gian Chand and another vs. State of H.P. & ors. CWP No.43 of 2007 Dr.Rometta Knawel & ors. Vs. State of H.P. & ors. CWP No.45 of 2007 Dr.Puja Negi Vs. State of H.P. & ors. CWP No.48 of 2007 Dr.Seema Sharma Vs. State of H.P. & ors. CWP No.61 of 2007 Arun Kumar & another Vs. State of H.P. & ors. CWP No. 243 of 2007 Dr.Pankaj Kumar & ors. Vs. State of H.P. & ors. Coram The Hon’ble Mr. Justice V.K.Gupta, C.J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting1? Yes. For the petitioners: M/s D.Dadwal, Sanjeev Bhushan, K.D.Shreedhar, P.P.Chauhan and Sudhir Sharma, Advocates. For the respondents: Mr.M.S.Chandel, Advocate General, for respondents No. 1, 3 and 4. Mr.V.D.Khidtta, Advocate, for respondent No.2 For the applicants/ Mr.Ajay Mohan Goel, Respondents Advocate. in (CMP No.495/2007) Whether the reporters of Local Papers are allowed to see the Judgment? 2 Sanjay Karol, J. By this common judgment, all the aforesaid writ petitions are being disposed of together as common question of law is involved in all these writ petitions. By way of these writ petitions, the petitioners have assailed the eligibility criteria laid in the prospectus issued by respondent No.2- Himachal Pradesh University, for the conduct of entrance examination for filling up some of the seats for post-graduate degree (MD/MS) and Diploma courses for the academic Session 2007-2009/2010. The challenge is on the ground that restricting the eligibility only for “inservice regularly appointed (HPHS-I) Himachal Pradesh Health Cadre candidates” is violative of Article 14 of the Constitution of India and that the petitioners being otherwise employed by the State of Himachal Pradesh – respondent No.1 on contract/ adhoc basis are also eligible for applying and appearing in the entrance examination to be conducted by respondent No.2. The State of Himachal Pradesh – respondent No.1 has set up a medical college in the State of Himachal Pradesh by the name of Indira Gandhi Medical College and Hospital (for short, IGMC). IGMC is affiliated to respondent No.1 and conducts the post- graduate degree (MD/MS) and Diploma courses duly 3 approved by Medical Council of India. Respondent No.2 has issued an advertisement dated 24.12.2006, Annexure R/2 (page 75), informing the public at large that MCQ competitive test for admission to post- graduate degree (MD/MS) and diploma courses (allopathy) in IGMC and MDS course in H.P. Dental College, Shimla, for the session 2007-09-10 would be held on 28.1.2007. It was inter alia mentioned that inservice regularly appointed HPHS-I candidates were eligible to appear in the test. 27.12.2006 was indicated the date of availability of the prospectus and 8.1.2007 was indicated as the last date for receipt of the application forms complete in all respects in the office of Deputy Registrar (Entrance Test). Respondent No.2 issued the prospectus, Annexure P-1 (page 15) and in terms thereof all applications are to be received on or before 8.1.2007, the entrance examination is to be held on 28.1.2007; the results are to be declared tentatively by 1.2.2007; the counseling is to commence from 28.3.2007 and the last date upto which the students could be admitted is 31.5.2007. In terms of clause 2 of the prospectus for various specialities, the University is to conduct examinations for 34 seats in post-graduate degree (MD/MS) course; 5 seats permitted by MCI yet to be recognized, 12 seats for 4 post graduate Diploma courses recognized by MCI; 6 seats for post graduate diploma course permitted by MCI yet to be recognized. 50 per cent of the aforesaid seats of degree and diploma courses are required to be filled in through All India Entrance Examination conducted by All India Institute of Medical Sciences or anybody nominated by the Government of India from time to time and out of the remaining 50% seats, 66.6% are required to be filled in through inservice regularly appointed (HPHS-I), HP Health Cadre candidates (hereinafter referred to as regularly appointed inservice candidates) and 33.3% seats are required to be filled in as directs seats by open competition from amongst the graduates of Medical Colleges of Himachal Pradesh (Indira Gandhi Government Medical College, Shimla and Dr.Rajendra Prashad Govt. Medical College Kangra at Tanda) or bonafide Himachalis, children of H.P. Government employees/ employee of Autonomous Bodies wholly or partially financed by H.P. Government getting admission to MBBS course through CBSE or any other All India Entrance Examination in MCI/G.O.I. recognized medical colleges in India. Since the petitioners have challenged the eligibility criteria laid down in clause 3.5 (i) of the prospectus, for ready reference the same is reproduced hereinbelow:- 5 “3.5 To qualify for admission to degree or diploma courses such regular HPHS-I candidates will be eligible who:- i) are regularly appointed in the HPHS-I. However adhoc/ contract service followed by regular services will be counted as qualifying service for the purpose of admission. ii) Candidates would have completed two years in tribal/ difficult areas. Difficult areas shall be defined vide Govt. of H.P. Deptt. of Personnel Instruction No. Per(AP-C)-B(9)-1/94 dated 22.06.1999 and subsequent instructions thereof if any. OR iii) Have completed three years in rural areas (which may or may not include tribal/difficult areas as notified by the Govt. and applicable to the departmental candidates from time to time). Rural Area shall be the area as defined/ notified by the Government from time to time. iv) He/she should have minimum 15 years of service left for superannuation after completion of PG Degree/Diploma course. For the purposes of calculating continuous regular service, clause 3.6 as under:- “3.6. The period of continuous regular service including adhoc/ contract service be calculated right from the date of joining as HPHS-I till the last date fixed for receipt of application in the Himachal Pradesh University.” The procedure for filing the applications for appearing in the entrance examination in so far as regularly appointed inservice candidates is concerned, is in clause 3.11, which is reproduced hereinbelow:- 6 “3.11 (i) Save as otherwise provided no in- service candidate(s) will be eligible to appear in the competitive examination, if his/her application has not been routed through the Director of Health Services, HP “alongwith service certificate. (The specimen of Certificate is attached at Appendix-4 in the Prospectus.) (ii) Candidates applying for direct seats will have to submit an affidavit duly attested from the competent authority on non-judicial stamp paper that he/she is not in regular/adhoc/ contract service of Government of Himachal Pradesh (The specimen of affidavit is attached at Appendix-3) in the prospectus. (iii) The candidates working on regular/ adhoc/contract basis and not possessing the requisite qualifying service as defined at 3.5 will be considered as direct candidates subject to the condition that they fulfill the conditions as laid down in 3.2(i) and further they shall have to tender resignation at the time of their selection, failing which they shall not be allowed any admission.” As all the aforesaid writ petitions, i.e. CWP No. 16 of 2007 (Dr. Lokesh Gupta & ors. Vs. State of H.P. and others), CWP No.30 of 2007 (Dr.Gian Chand and another vs. State of H.P. and others), CWP No. 43 of 2007 (Dr.Romelta Knawel vs. State of H.P & ors.), CWP No. 45 of 2007 (Dr.Puja Negi vs. State of H.P. and others), CWP No. 48 of 2007 (Dr. Seema Sharma vs. State of H.P. and others), CWP No.61 of 2007 (Arun Kumar vs. State of H.P. and ors.) and CWP No. 243 of 2007 (Dr.Pankaj Kumar and others vs. 7 State of H.P. and others), involve common question of law and the facts of all the petitions except CWP No. 243 of 2007, are identical, therefore, facts of only one writ petition i.e. CWP No. 16 of 2007 are given hereinbelow:- The present writ petition has been filed by 13 petitioners and except for petitioner No.8, all are working as Registrars and Medical Officers on contract basis with the State of H.P. Petitioner No.8 has been appointed on adhoc basis by respondent No.1 and is working as Medical Officer. The petitioners have averred that except for the condition imposed in clause 3.5(i), the petitioners are fully eligible to appear in the entrance examination and that the restriction for inservice regularly appointed candidates is arbitrary, discriminatory and violative of Article 14 of the Constitution. The petitioners are in government service for more than 6 years and have served the State in rural areas also. There could not be any recruitment on regular basis, as the H.P. Public Service Commission has not conducted any test since 1999. Consequently, the stipulation contained in clause 3.5(i) is bad and that the petitioners are being deprived from applying and competing for the post-graduate courses. The Government has been renewing the contracts of employment from time to 8 time, thus, the petitioners are at par with that of the regularly appointed inservice candidates. It is averred that since the time between the issuance of the prospectus and the last date of submission of the applications was very short, the petitioners could not submit their applications for entrance examinations through proper channel. They have stated that the University in the neighbouring State of Punjab does not have any such condition, therefore, the respondents ought not to have imposed such a condition. When this writ petition came up for Admission/hearing for the first time, on 4.1.2007, notice was issued to the respondents in terms of the following order:- “Replies shall be filed by the respondents before the next date. In the meanwhile, we permit the petitioners to apply. We direct the respondents to receive the applications of the petitioners, if submitted before the expiry of the last date, to process the applications and to permit the petitioners to take the entrance test, scheduled for 28th January, 2007. This is subject to the petitioners fulfilling all the eligibility criteria, except the criterion relating to the regularly appointed in-service candidates. The result of the petitioners, however, shall not be 9 declared without the leave of this Court. The aforesaid is purely provisional and at the risk and responsibility of the petitioners. This also shall abide by the result of this petition. The aforesaid permission shall not create any right in favour of the petitioners. List on 7th March, 2007.” In compliance thereof, the petitioners’ applications were accepted, they undertook the examinations and during the pendency of the petition, the results of all the candidates except the petitioners was declared, which is annexed as Annexure R-4 (page 92). Such of those regularly appointed inservice candidates who had appeared and passed the entrance examination in the present writ petition, moved an application being CMP No.495/2007, seeking impleadment and permission to oppose the petition. The said application was allowed in terms of order dated 9.3.2007 and the applicants in CMP No.495/2007 were impleaded as respondents in the writ petition. The application and the reply dated 4.3.2007 filed by them alongwith the application on record, is being considered. These newly added respondents being eight in number (hereinafter referred to as private respondents) have averred that they are already in 10 service since long. Their date of appointments are as under:- Name Date of contract/ Date of Adhoc regularization Chaman Singh Thakur 1994 1999 Suresh Kumar 1993 1999 Sumit Dubey 2000 2000 Pankaj Gupta 1996 2000 Alok Sharma 1998 2000 Renu Rattan - 1999 Jatinder J Kumar 1997 1998 Preeti Takkar 1999 2000 In the counter-affidavit, the aforesaid private respondents have averred that they have been appointed as regular employees after undertaking direct recruitment test through H.P. Public Service Commission in compliance of R & P Rules. The post of Medical Officer is a class-I gazetted (selection) post and they form a separate and distinct class and category in itself and cannot be equated with such of those employees who have been engaged by the State dehors the R & P Rules without undergoing any selection process conducted by the H.P. Public Service Commission. Their appointments may be due to the exigencies of requirement determined by the State purely on contractual basis. The services of the contract/ adhoc employees are purely at the pleasure 11 of the Government terminable by either side after giving one month’s notice. The regularly appointed inservice candidate is to be treated on duty while undergoing the said course and is paid all pays and allowances. On the other hand, a direct candidate has to pay for undergoing this course and a regularly employee after completion of course is bound to and actually does serve the State backdoor as a post- graduate doctor. In any case, the petitioners are duly entitled to and eligible to compete for admission as a direct category candidates. The petitioners as on the date of receipt of the applications were not eligible, consequently, any subsequent development with regard to regularization would have no effect. No reply has been filed by respondent No.2. Respondents No.1 (State of H.P.), 3 and 4 have filed reply dated 6.3.2007 stating that vide memorandum dated 5.3.2007, the government has regularized the services of the petitioners appointed on adhoc/contract basis. However, as on the date of submission of the applications, the petitioners were not regularly appointed GDOs. During the course of hearing, counsel for the petitioners wanted to rely upon an averment made in para 11 of the reply filed by the State, wherein it has been stated that the relief prayed for by the 12 petitioners has been meted out to them. The learned Advocate General clarified that there seems to be an error and the fact of the matter is that the petitioners were not eligible as on the date of submission of the applications. The eligibility criteria laid down is to serve public purpose and in public interest. We have heard S/Shri K.D.Shreedhar, D.Dadwal, Sanjeev Bhushan, P.P.Chauhan and Sudhir Sharma, learned counsel for the petitioners, learned Advocate General, for respondents No.1 (State of H.P.), 3 and 4, Mr.V.D.Khidtta, learned counsel for respondent No.2- University and Shri Ajay Mohan Goel, learned counsel for private respondents. They have canvassed the issues raised by them in their pleadings. The counsel for the petitioners have also impressed that during the pendency of the writ petition vide memorandum dated 5.3.2007 respondent No.1 has taken a decision to regularize 398 doctors, who were with the Government on contract/ adhoc basis. Therefore, in any event the petitioners services being now regularized they fulfill the eligibility criteria laid down in clause 3.5 (i) and that since they have been allowed to participate in the entrance examination, in the event of they being declared successful they be allowed to be admitted in the respective courses in order of merit. 13 In support of his case Shri Dushyant Dadhwal, learned counsel for the petitioners has relied upon the decisions in Dr.B.N.Vijayanarasimha v. State of Karnataka and others, reported in AIR 1990 Kart. 359, Charles K. Skaria and others v. Dr.C.Mathew and others, AIR 1980 SC 1230 and Meenakshi Malik v. University of Delhi and others, AIR 1989 SC 1568. Learned Advocate General appearing for the State has sought to rely upon a decision of this Court in Jagpal Singh Pandher vs. State of H.P. and others, CWP No.1343/2001, decided on 3.5.2002, which according to him squarely covers the entire issue in the present writ petition. Shri Ajay Mohan Goel, learned counsel for the respondents has sought to rely upon the decisions in State of MP and another vs. Dharam Bir, reported in (1998) 6 SCC 165, Union Public Service Commission v. Girish Jayanti Lal Vaghela and others, reported in (2006) 2 SCC 482, Dolly Chhanda vs. Chairman, JEE and others, reported in (2005) 9 SCC 779. We proceed to deal with the issues raised as under:- It is a settled law that the Government, which bears the burden of running the medical colleges is entitled to lay down the criteria for eligibility and cannot be denied the right to decide 14 from what sources the admission will be made. The eligibility is a question of policy and depends inter alia on an overall assessment of survey of the requirements of residents of the territories and other categories of persons for whom it is essential to provide facilities from medical education. The Government is entitled to lay down the sources from which selection of admission would be made. If the sources are properly classified on reasonable basis it is not for the Courts to interfere with the manner and the method of making the classification. [Kumari Chitra Ghosh and another vs. Union of India and others, (1969) 2 SCC 228, D.N.Chanchala vs. State of Mysore, (1971) 2 SCC 293, K.Duraisamy and another vs. State of Tamil Nadu and others, (2001) 2 SCC 538]. Article 14 forbids class legislation but does not forbid reasonable classification, which is based on reasonable and intelligible differentia having rationale basis. The relevant factors for considering the constitutionality must be judged on the fact that there is presumption of constitutionality, burden of proof is heavy upon the petitioners and hardship of the petitioners cannot be the basis for determining the constitutionality of the statute. [(Saurabh Chaudri and others vs. Union of India and others, (2003) 11 SCC 146)] 15 Further in Pre-PG Medical Sangarsh Committee and another vs. Dr.Balrang Soni and others, reported in (2001) 8 SCC 694, it has been held that the Government possesses the right and authority to decide from what sources the admissions in educational institutions or to a particular disciplines and courses therein have to be made and that too in what proportion. It has further been held, that “It is permissible for the Government to fix such a source or classification of candidates from which selection for admission to the postgraduate colleges in the State had to be made for yet another genuine, relevant and reasonable cause and purpose, which has, in our view, sufficient nexus with the larger goal of equalization of education opportunities and to sufficiently prefer the doctors serving in the various hospitals run and maintained from out of public funds by the Government or government departments, in the absence of which there would be serious dearth of qualified postgraduate doctors and experts to meet the requirements of such hospitals run by the State and State departments, the only avenue open for treatment of the large body of the ordinary common man, all over the State. This larger public interest, unlike reservations, envisaged for SC/ST with a different and laudable purpose to assist educationally backward classes, is 16 a distinct and vitally important public purpose in itself absolutely necessitated in the best of public interest”. …………”The doctors, who are inservice candidates in various medical institutions run and maintained by the Government or government departments, have wide area and horizon of exposure on the practical side”. Inservice candidates on attaining higher academic achievements would be available to be posted in rural areas by the State Government. [State of MP and another vs. Gopal D.Tirthani and others, (2003) 7 SCC 83]. Classification must be founded on substantial differences which distinguish persons grouped together from those left out of the group and such differential attributes must appear a just and rationale relation to the object sought to be achieved. Classification is primarily for the legislature or for the statutory authority charged with the duty. If the classification is found to rest on reasonable basis it has to be upheld. In order to establish that protection of equal opportunity clause has been denied, it is not enough for the parties challenging the same, to say that they have been treated differently from others, not even enough that a differential treatment has been accorded to them in comparison with others similarly 17 circumstanced. The discrimination is essence of the classification and does violence to the constitutional guarantee of equality only if it rests on an unreasonable basis. [State of Jammu and Kashmir vs. Tirloki Nath Khosa (Constitution Bench), AIR 1974 SC 1. In Mohan Kumar Singhania and others vs. Union of India and others, (1992) Suppl.(1) SCC 594, it has been held:- “Article 14 declares that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The cherished principle underlying the above article is that there should be no discrimination between one person and another if as regards the subject matter of the legislation, their position is the same (vide Chiranjit Lal Chowdhuri vs. Union of India, (AIR 1951 SC 41) or in other words its action must not be arbitrary, but must be based on some valid principle, which in itself must not be irrational or discriminatory (vide Kasturi Lal Lakshmi Reddy v. State of J&K ((1980) 4 SCC 1). As ruled by this Court in Ameerunissa Begum v. Mahboob Begum (AIR 1953 SC 91), and Gopi Chand v. Delhi Administration (AIR 1959 SC 609), that differential treatment does not per se constitute violation of Article 14 and it denies equal protection only when there is no rational or reasonable basis for the differentiation. Thus Article 14 18 condemns discrimination and forbids class legislation but permits classification founded on intelligible differentia having a rational relationship with the object sought to be achieved by the Act/Rule/Regulation in question. The Government is legitimately empowered to frame rules of classification for securing the requisite standard of efficiency in services and the classification need not scientifically be perfect or logically complete. As observed by this Court more than once, every classification is likely in some degree to produce some inequality.” Legal relationship between the Government and its servants is something entirely different, it is much more than a purely contractual relationship and is in the nature of ‘status’. Whether a person holds a particular post in a substantive capacity or is only temporary or adhoc is a question which directly relates to his status depending upon the terms of appointment and it is not open to any government employee to claim automatic alteration of status unless that result is specifically envisaged by a statutory provision and a government employee cannot claim a status different from what has been conferred upon him at the initial or subsequent stage of service. [State of MP and another vs. Dharam Bir, reported in (1998) 6 SCC 165]. 19 Appointment to a post under the State can only be made in accordance with law. [Union Public Service Commission, (supra)] The norms and procedure in prospectus issued for admission to the educational institutions have to be complied with strictly by the authorities concerned and condoning defects in the application by the authorities and allowing the candidates to rectify the same after the last date of receipt of applications is illegal. [Gunjan Kapoor vs. State of H.P. and others, 1999 (1) Sim. L.C. 246]. We are of the view that the object to facilitate and ensure the upgradation of existing knowledge and skill of regularly appointed inservice HPHS-I doctors whose services as experienced post- graduate doctors shall be utilized in the rural/tribal areas anywhere in the State for providing proper medical service to the public at large is noble and justified. Keeping in view the object of the policy, the purpose which is sought to be achieved and also the various judicial pronouncements and the principles of law stated above as also for the subsequent reasons, the adhoc/contract employees cannot be equated and compared with regularly appointed inservice candidates/doctors appointed in HPHS-I cadre through 20 the Public Service Commission in compliance with the R & P Rules. The post of the Medical Officer is class-I gazetted (Selection) post, which post is filled in 100% by way of direct recruitment through H.P. Public Service Commission. The petitioners have been appointed on contract/ adhoc basis through backdoor without following