IN THE HON‘BLE HIGH COURT OF CHHATTISGARH AT BILASPUR Lac.) w.P. Noi5.4112L..../2010 PETITIONER: DR. BALMIK PRASAD SONKAR, AGED ABOUT 51 YEARS, S/O LATE SHRI LL. SONKAR, DISTRICT HOSPITAL CAMPUS, AMBIKAPUR, (CG) VERSUS RESPONDENTS: 1. STATE OF CHHATTISGARH, THROUGH THE SECRETARY, DEPARTMENT OF HEALTH ANDD FAMILY WELFARE, GOVERNMENT OF CHHATTISGARH, MANTRALAYA, DKS BHAWAN RAIPUR (C.G.) ~/ DIRECTOR, DIRECTORATE OF HEALTH SERVICES, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT OF CHHATTISGARH, ‘ MANTRALAYA, DKS BHAWAN RAIPUR (CG) DIRECTOR, MEDICAL EDUCATION DEPARTMENT, GOVERNMENT OF CHHATTISGARH, MANTRALAYA, DKS BHAWAN, RAIPUR /’4. CHIEF MEDICAL AND HEALTH OFFICER, DISTRICT - SARGUJA , CHHATTISGARH PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR' ISSUANCE OF APPROPRIATE WRITS OF MANDAMUS AND CERTIORARI AND FOR OTHER SUITABLE WRITS AND DIRECTIONS: i PET§TIONER TRESPONDENTS: Writ Petition (S) No3412l2010 T i Dr. Baimik Prasad Sonkar j Versus i State of Chhai'tisgarh and others :1 POST FOR ORDEB ON ”J’QUGUST, 20W r Sd/- xx, Manindra Mohan Shrivastrraryawi i Judge HIGH COURT OF CHHATTISGARH : BILASPUR Smqle Bench Hon’ble Shn Manlndra Mohan Shrwastava, J Wnt Petitlon LS) No3412/2010 PETITIONER Dr. Ba|mlk Prasad Sonkar Versus RESPONDENTS: ‘ State of Chhattisgarh and others PEJ'ITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA Present Shn Abhmav Kardekar counsel for the petitioner Shn V V S Murthy, Deputy Advocate General for the State/respondents ORDER (Passed on lzgAugust, 201 0) The petitioner, by this petition, has challenged the correctness and vatidity of communication dated 30-06-2010 and the action on the part of respondent No.2—Director. Health Services. Chhattisgarh, whereby he has refused to sponsor the petitioner for pursuing Post Graduate Course of Diploma in Orthopedics in Pt. Jawahar Lal Nehru Medica! College, Raipur. (2) Relevant and necessary factual matrix to decide the controversy involved in the petition are that the petitioner is presently working as a Medical Officer in Primary Health Centre. Vandana, District Surguja.'The petitioner was initiaily appointed as Ad hoc Assistant Surgeon on 04-08-1992. The petitioner, for pursuing higher education, appeared in the Pre. P.G. examination held on 14-03- 2010 and secured position in the merit list at S.No.166. ln the counseling held on ‘ 31-05—2010, the petitioner was selected and allotted a seat in Diploma in Orthopedics Course, a Post Graduate Course, in Pt. Jawahar Lal Nehru Medical College, Raipur, evident from selection letter Annexure P-3. The petitioner submitted necessary documents and also paid fees. These facts are not disputed. On 02-06-2010, respondent No.2 wrote a ietter to the respondent No.4 to relieve the petitioner to enable him to join the P.G. course in the Medical College. As a Medical Officer in Government Service, is required to be sponsored by his employer in order to pursue the medical course, vide request letter dated 14-06— 2010 (Annexure P-6), the petitioner applied for issuance of sponsorship certihcate in his favour, as he had to join the course for studies on 15-06-2010. The petitioner sent another letter on 25-06-201 0 (Annexure P-7) that sponsorship certificate may be issued to him, as he could not pursue his studies without sponsorship certificate. Respondent No.2, however, declined to issue sponsorship certificate in favour of the petitioner & one Dr. K. K. Som and communicated this decision to the Director, Medical Education, vide impugned communication dated 30-06-2010 (Annexure P—1), copy of which has also been endorsed to the petitioner. Seriously aggrieved by the aforesaid decision of the Director, Health Services for issuance of sponsorship certificate, the petitioner has approached this Court. (3) Learned counsel appearing for the petitioner has assailed the aforesaid communication'of the respondent No.2 by contending that the impugned order does not contain any reason whatsoever but vaguely records its inability to sponsor the petitioner for “administrative reasons“. Referring to the contents of the letter dated 29-06-2010 (Annexure R-1), learned counsel for the petitioner argued that the reason assigned‘for rejecting the case of the petitioner is factually incorrect inasmuch as the petitioner has already been regularized in service vide order dated 07-03-2003 (Annexure P—Z) passed by the State of Madhya Pradesh.,Learned counsel for the petitioner further argued that the Director, Health Services is wrongly treating him as Ad hoc employee, as he is . no ionger Ad hoc employee but a reguiar employee. e n wa$ next contended that the petitioner has throughout worked in the Tribal District of Surguja in remote areas since inception in service. Referring to certincate dated 20-05-2010 (Annexure A-1) pieced on record by the petitioner along with his rejoinder, it is argued that in the aforesaid certificate, a noting has been made on 31—05-2010 that the petitioner's services have been reguiarized vide order dated 07-03-2003 passed by the State of Madhya Pradesh, and therefore, the very basis to refuse the name of the petitioner for sponsorship for P.G. course, on the face of it is cieariy non existing and factually incorrect. Learned counsel for the petitioner also contended that from the provisions contained in the Chhattisgarh/ Medical Snatakottar Pravesh Pariksha Niyam, 2004, (hereinafter referred to as “the Rules of 2004") as amended vide notihcation dated 11-05-2010, now the Medical Officers working on contract basis in Chhattisgarh Rural Medical Core and posted in hardest/hard CRMC Institutions. who have completed three years of service on 30‘“ of April of the year of the examination, have aiso been held entitled for the seats reserved for State Government Quota. Therefore, it is argued that denial of issuance of sponsorship certificate to the petitioner on the ground that he is only an Ad hoo employee, resuits in discrimination and violative of Article 14 of the Constitution of India. t4) Per contra, justifying the decision to refuse the name of the petitioner for sponsorship for pursuing P. G. Diptoma course in the Medical Coilege, learned Deputy Advocate General submitted that in view of the provisions contained in Rule 5.1 of the Rules of 2004, it is not permissible under the law to sponsor the name of the petitioner. Learned counsel for the respondents further submitted that upon reorganization of $tate under Madhya Pradesh Reorganization Act, 2000, 111 Ad hoc Medical Officers, including the petitioner, were allocated to the State of Chhattisgarh, and therefore, he became an employee of the State of Chhattisgarh. The matter relating to reguiarization of those 111 Medicai Officers including the petitioner is still under consideration by the State Government. Learned counsel for the respondents argued that order dated 07-03-2003 (Annexure P-2) is not at ali appiicabie in the State of Chhattisgarh nor the State of Chhattisgarh is bound by the said order. it is submitted that the State of Madhya Pradesh had no authority to issue any order of regularization in respect ‘ of those 111 Ad hoc Medical Officers including the petitioner, whose services have been allocated to the State of Chhattisgarh, as, they are no longer employees under the administrative control of the Successor State of Madhya Pradesh, after reorganization. Therefore, refusal on the part of the respondents to sponsor the name of the petitioner on the ground that he is still working as Ad hoc Medical Officer, is in accordance with the Rule 5.1 of the Rules of 2004. in so far as submission regarding diecrimination is concerned, teamed counsel for-the respondents submitted that as there are no pleadings in this regard in the petition and such a ground was raised during the course of arguments, the same is liable to be rejected. , (5) i have heard learned counsel for the parties and perused the records. (6) issuance of sponsorship certificate to enabie serving Medicai Officers in government service, to pursue P.G. course as in service candidate is reguiated by the Rules of 2004; which have been framed by the State Government in exercise of statutory powers conferred by Sub Section (1) of Section-4 of the Chhattisgarh Chiktsa Mahavidhyaiayon- Ke Snatkottar Pathy'akramon Main Pravesh Adhiniyam, 2002 (hereinafter referred to as “the Adhinyam of 2002“). The rules therefore have statutory force. issuance of sponsorship certificateis provided under the provisions contained in Rule 5 of the Rules of 2004. This rule been further amended vide notification dated 11 -02-201 0, which have come ‘ into force by publication i has n Chhattisgarh Rajpatra, dated 26-02-2010. 1t may be retevant to mention that the Rule 4 of the Rules of 2004 as amended in the year 2010 providee that 50% seats in P. G. course and 50% seats in P.G. Dipioma course are reserved for State Government Doctors working under and sponsored by the $tate Government. it further provides that out of to State Government Do reserved for the candidates working in CRMC institutions. Rule 5 of the Rules of 2004, as amended vide notification dated 11 the case in hand is as under:- “5.1 For Assistant Surgeons.- Only such Assistant , Surgeons working under the Government of Chhattisgarh will be eligible to be sponsored for the course who will be completing five years of service after their selection by Madhya Pradesh/Chhattisgarh Public Service Commission or their regularization by the State Government as the case may be on or before 30‘” Aprii of the year in which the Pre—PG Examination is held. This period shall be counted from the tai seats reserved for ctors, 50% seats both in Degree & Diploma shalt be -02—201 0, relevant for adiudioation of date of joining the service after seiection from Public Service Commission or their regularization as the case may be. However State Government doctors working in hardest/hard CRMC institutions both as regular or contractual employees and have completed three years of sen/ice on 30‘“ of April of the year of examination shall also be entitled for the seats reserved for State Government doctors' quota. Certificate for such eligibility has to be issued by Director Health Services of Chhattisgarh. 5.2 For other in service candidates:- ln service candidates, other than Assistant Surgeons referred to above will have to produce sponsorship certificate in the prescribed pro-forma from their employers at the time of counseling." E” ” (7) A perusal of the aforesaid provision would show that in order to be eligible for sponsorship to pursue P.G. course, only those Assistant Surgeons who will be completing five years of service after their selection by Madhya Pradesh/ChhattisgarhPublic Service Commission or their regularization by the State Government as the case may be. on or before 30‘“ April of the year in which the Pro-PG Examination is held, would be eligible. The rule further clarifies that the said period of frve years shall be counted from the date 'of joining the service after seiection from Public Service Commission or their regularization as the case may be. ‘ For other in service candidates, all that has been specified in the rules is that they will have to produce sponsorship certificate in the prescribed pro-forma from their empioyers atthe time of counseiing. By way of amendment vide notification dated 11-02-2010 referred to above, another classicategory of regular doctors or contractual government doctors, is aiso entitled for issuance of sponsorship certificate for working in hardestihard CRMC lnstitutions. who have completed three years of service on 30‘“ of April of the year of the examination, for admission against the seats reserved for State Governm ent Doctor quota. (8) Petitioner’s claim of he being a regular Assistant Civil Surgeon on the strength of order dated 07-03—2003 of the Government of Madhya Pradesh (Annexure P-2), l am afraid, cannot be accepted. ln the rejoinder fried by the petitioner, the averment in the return that at the time of reorganization of States, 111 Ad hoc Doctors including the petitioner were allocated to the State of Chhattisgarh, has not been disputed. In fact, the petitioner himself in the rejoinder stated that the petitioner was an employee of State of Madhya Pradesh l r i i l i ti“ 2000 and after 2000, he became an employee of State of Chhattisgarh. This being an admitted position, !egal consequences as envisaged in Section 68 of the MP. Re-organization Act, 2000, automaticaHy follow i.e the petitioner shall be deemed to have been an employee of State of Chhattisgarh. Thus, the petitioner after his allooation to the State of Chhattisgarh, could not by any stretch of imagination, be treated as an employee of succeseor State of Madhya Pradesh, in View of the statutory scheme of allocation of services engrafted in M. P. Re- organization Act. 2000. Consequently, the order passed by the State of Madhya Pradesh on 07-03-2003 would not result in regularization of the services of the . petitioner as an employee.of the Successor State of Chhattisgarh. Contention of respondents that the petitioner is still continuing on Ad hoc basis in the State of Chhattisgarh and the matter relating to petitioner's regular appointment is still pending consideration has to be accepted. (9) This being the position, it is clear that the petitioner is still continuing as an Ad hoc employee and unless and until an order of regularization in service is passed by the State of Chhattisgarh, the petitioner could not claim regular status in the employment of the State of Chhattisgarh on the strength of order of regularization passed by the State of Madhya Pradesh in the year 2003. (10) The other contention of learned counsel for the petitioner that in view of the endorsement made in the Rural Services Certificate (Annexure A-1), the petitioner has been accepted to be a regular employee of State of. Chhattisgarh, does not merit acceptance. ln the rejoinder, the petitioner has stated that endorsement was made. Who made that endorsement has not been pleaded. In any case, there is no order of the State Government, the appointing authority of an Assistant Surgeon in Health Department, granting regular status to the petitioner. (1 1) The other submission of learned counse! for the petitioner is that as even a contract employee, who was working in a hardest/hard CRMC institutions and has completed three years of service on 30th of April, is entitled to issuance of sponsorship certificate, yet petitioner has been refused for sponsorship, who has been working as an Ad hoc Medical Ofhcer since 1972, in remote, tribal and rural areas of Tribal District of Surguja, it amounts to hostile discrimination. lt has to be noted that the class/category of Medical Officer, who are entitled to sponsorship for pursuing P.G. course, has been specified under statutory rules. The scope of enquiry in this petition is as to whether the petitioner falls in the category specified under the statute so as to claim sponsorship. lt is not the case of the petitioner that he belongs to the class of contractual employee who is working in the hardest/hard CRMC institutions. There are no such , pleadings. (12) The present is not a case where the validity of Rule 5.1 of the Rules of . 2004 is underchallenge on the ground that the same is discriminatory and therefore unconstitutionai. Such a plea of discrimination could be examined only while considering, validity and constitutionality of the statutory scheme of categorization of Medical Officers provided under Rule 5 of the Rules of 2004 for the purpose of sponsorship. (13) Accordingly, action of the respondent No.2 in refusing the name of the petitioner for sponsorship for pursuing P.G. course cannot be faulted with. Upon examination, this Court has also come to the conclusion that the petitioner does not belong to any of the category of the Assistant Surgeon or Medical Officer specihed in Rule 5 of the Rules of 2004. The statutory rule does not permit authorities to sponsor the Ad hoc employees. Though, in the present case, it is a that the petitioner, who has been working as Ad hoc case of grave hardship r the last 18 years, awaiting his regular appointment is deprived of an opportunity to improve his qualification which would have ultimately benefited the institution'and in public interest, no writ of mandamus can be issued contrary to the provisions of law. lt may be a matter of consideration by the rule making authority to consider inclusion of such class of Medical Officers. (14) ln the ultimate conclusion, this Court is not inclined to grant relief as prayed for in the petition. Consequently, the petition is dismissed. No orders as to cost. Doctor serving in a remote, rural and tribal area of District Surguja fo i- f Sd/~ ' ,L 2 Manindra Mohan Shrivastavai ’ l . Judge r TUMANE