IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP Nos. 204 of 2010 and CWP No. 1077 of 2010. Reserved On : 2.6.2010. Decided on: June 4, 2010. 1. CWP No. 204 of 2010 Sanjay Kumar Rathore & ors. ….. Petitioners. Versus State of H.P. & ors. ….. Respondents. 2. CWP No. 1077 of 2010 Raj Kumar & Ors. ….. Petitioners. Versus State of H.P. & ors. ….. Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting? Yes. For the petitioner(s) Mr. Ajay Mohan Goel, Advocate in CWP No. 204 of 2010 Mr. Trilok Chauhan, Advocate, in CWP No. 1077 of 2010. For the Respondents Mr. R.K.Bawa, Advocate General with Mr. Ankush Dass Sood, Addl. AG and Mr. J.K.Verma, Dy. AG for respondents. Mr. B.C. Negi, Advocate, for the University. Ms. Ranjana Parmar, Advocate for private respondents. ---------------------------------------------------------------------------------------------- Justice Kurian Joseph, C.J. (Oral) The issue raised in these Writ Petitions pertains to the challenge on the new policy adopted by the State of Himachal Pradesh to widen the scope of in-service candidates so as to 2 include doctors appointed on contract basis in the matter of admission to Post Graduate courses, commencing from the year 2010. As per the policy prevailing up to 2010, the in-service candidates consisted only of doctors recruited regularly through the H.P. Public Service Commission. However, as per the new policy and the prospectus issued thereafter (Annexure P-1): “the definition of in-service GDOs will be in-service regularly appointed (HPHS) Health cadre candidates, adhoc & contractual appointees including Rogi Kalyan Samities appointees” {Paragraph 3.2 GROUP-B, A (ii) Annexure P1 Prospectus}. 2. It has also been stipulated in the prospectus that 50% of the degree and diploma courses shall be filled up through All India Entrance Examination and the remaining 50% will go to State quota. The 50% state quota is distributed between in- service candidates and open merit in the ratio of 70:30. It has been stipulated at 3.2 Group-B ( State quota seats) A.. The in- service GDO quota of the prospectus that “ out of remaining 50% seats for State quota, 70% will be filled up by in-service regularly appointed (HPHS) health cadre candidates, adhoc and contractual appointees including appointees of Rogi Kalyan Samities. The GDO category will consist of two groups i.e. one group consisting of regularly appointed health cadre GDOs and second group consisting of adhoc, contractual and Rogi Kalyan Samities appointees. The distribution of seats between regular 3 GDOs and those appointed on adhoc and contractual basis including Rogi Kalyan Samities appointees will be made in the ratio proportionate to their total number, as on 30.10.2009. For the academic session 2010-12/13, the distribution of seats between above two groups will be in the ratio of 4:1”. Thus, as per the new post-graduate admission policy, the doctors who have been appointed on contractual or adhoc basis are also given a chance to compete for admission to post graduate courses against the in-service quota. The reason for the change in the policy has been explained in the reply filed on behalf of the State, which reads as follows: “Admission to the Post Graduation Courses is made from two categories- Direct Candidates (those who are not in Government job) and in service candidates (those who are in the service of the State). The State Government is appointing the doctors on contract through Rogi kalian Samitis (RKS) since 2008 and these doctors are given place specific, non-transferable contracts. This has resulted in filling up of vacant posts of doctors in remote and difficult areas. Since the seats for PG courses are earmarked for In-Service candidates and direct candidates, the contract appointees including those appointed by RKSs form part of In-service category only. Since all appointments of Medical Officers are being made on contract through RKSs and the State Government provides Grant-in-Aid to these 4 RKSs for salary from the state budget, these doctors are logically to be considered part of in- service category for the purpose of admission to PG courses. Secondly, it has been observed in the past that the MBBS doctors who do Post graduation as a direct candidates prefer not to serve the state after the degree. In-Service candidates are more likely to serve the state after doing Post Graduation. Therefore, in order to encourage young doctors to serve in far flung, difficult, remote and tribal areas of the state and to incentivise them for serving in these areas the State Government took several policy initiatives. The new PG policy notified on 19-05-2009 provided for gradual increase in seats for in-service candidates to encourage doctors to join Government job. The policy also re-defined the number of years of service required to be eligible for post graduation from two to six years. Those serving in the most difficult areas like Lahaul & Spiti, Pangi etc. are eligible to compete for in-service PG seat after two years of service compared to those serving within municipal units of Shimla and solan towns and in Baddi- Barotiwala-Nalagarh area where six years service is required to be eligible for Post Graduation. This coupled with counseling based system of postings, place specific non transferable contracts and differential salary structure has created a situation where the posts in the most difficult area have been filled up. These Medical Officers are serving the State and their salary is being paid by Government by way of Grant-in-Aid to RKS, therefore, they are 5 in-service Medical Officers for all intents and purposes. It would be pertinent to reiterate that the doctors presently working on adhoc/contract basis or through Rogi Kalyan Samiti are working in tribal, remote or difficult areas on fixed emoluments. They are required to be equated with the regular in-service candidates (GDOs) for the purpose of admission for PG course therefore, the State took a conscious decision to distribute seats between regular GDOs and those appointed on adhoc/contract basis including Rogi Kalyan Samiti appointees in proportion to their total number in the State in that relevant year. As such the present decision has been taken in larger public interest.” (emphasis supplied) 3. According to the writ petitioners, the new policy as explained above, amounts to violation of Article 14 of the Constitution of India since un-equals have been treated equally. Several contentions referring also to certain apparently ambiguous contradictory clauses in the prospectus are also referred to by the learned counsel for the petitioners. 4. Before analyzing legal contentions, we feel it appropriate to refer to certain glaring facts and figures. In the year 2009, the total number of PG seats available under the State quota to be filled up by in-service candidates were 11, whereas for the year 2010, the total number of seats available to be filled up by the in-service candidates are 28. Only 20 doctors from 6 among the regularly recruited doctors in the Himachal Pradesh Health Service cadre have qualified in the written test and only three have qualified from the contract. Out of 28 seats, those available for the in-service candidates, only 19 have been filled up and the rest 9 have been surrendered to the open merit (direct quota candidates) and of the 19 those opted, 3 are doctors appointed on contract basis. There is none from the adhoc or Rogi Kalyan Samities Societies, therefore, that question need not be considered in these cases. Yet another significant factual position is that during the last year, the in-service quota was only 66% whereas this year it is 70%, next year 80% and in the year after next it is 90% and thereafter 95%. The emerging factual position is that all the regularly recruited doctors as well as doctors appointed on contract basis and qualified in the test got a chance for admission to the PG course. In other words, by including the contract service appointees, factually and actually, the regularly recruited doctors have not suffered any substantial injury except to the extent that hitherto, the regularly recruited doctors could compete among themselves for the specialties, according to their merit in the qualifying test. From the year 2010 onwards, the same has to be shared on the basis of 4:1. We are also informed that the regular recruitment in the sphere of doctors was conducted during the last 10 years only twice, in 1999 and 2007. The State has its own reasons-justification for not adopting regular recruitment policy and one main 7 justification is the financial crunch. We cannot also all together miss to take note of a new trend of recruitment in various services as contractual/outsourcing etc., in view of the financial crunch experienced by the States. There are other valid reasons as well. Be that as it may, we are informed that the State of Himachal Pradesh has taken steps to amend its Recruitment & Promotion Rules, so as to include this new method of recruitment. But, as already stated in the reply, be it contract or adhoc or outsourced Rogi Kalyan Samiti appointments, the payment goes out of the state exchequer only either by way of grant-in-aid or otherwise. 5. In this background of the situation only, we have to analyze the various contentions raised by the petitioners. We have no doubt in our mind that the regularly recruited doctors and those recruited on contract or adhoc basis do not form a class in themselves for the purpose of filling up the PG seats against in-service quota. But the question is whether the State is entitled to prescribe its own policy as to how to fill up the seats allotted to it and in the process, whether the State can prescribe its own policy by reasonably classifying the two groups of doctors serving in the State? 6. In Pre-PG Medical Sangharsh Committee and another vs. Dr. Bajrang Soni and others, with connected matters, 2001(8) SCC 694, it has been held by the Apex Court that: 8 “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 educational 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 qualified postgraduate doctors and experts to meet the requirement 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 a distinct and vitally important public purpose in itself absolutely necessitated in the best of public interest.” 7. As already stated above, just as the regularly recruited doctors are paid by the State, the contract doctors are also paid only out of State funds and in the peculiar situation prevailing in the State of Himachal Pradesh requiring the service of doctors in the far-flung, rural, tribal, remote and interior areas, the State was in a position to ensure the service of doctors only by the appointments on contract/ outsourced Rogi Kalyan Samities basis. This plain truth or sharp reality cannot be all 9 together ignored in deciding the issue before us and analyzing the submissions made by the learned counsel for the petitioners. No- doubt, Article 14 of the Constitution of India prohibits class legislation. However, reasonable classification is permissible, provided the classification has a nexus to the object sought to be achieved. According to the State, by providing a limited opening to the contract service doctors to compete for Post Graduate courses they are able to ensure the service of doctors in far-flung areas, at least for a specific period. It is also seen from the new policy as amended thereafter that the contract/adhoc/ Rogi Kalyan Samiti doctors are required to execute a bond to serve the State for a period of at least 5 years after completion of the PG course and if not they will have to pay an amount of Rs. 15 lacs to the State. Thus, the State would be in a position to ensure the service of contract doctors who are specialized in those rural areas, after acquiring the PG courses. The 3 doctors before us who have been selected against the quota for the contract service doctors submit that they will serve the State in terms of the bond and the learned Advocate General on behalf of the State submits that on completion of the PG course, those three doctors will be appointed on contract basis by the State for 5 years, unless they are otherwise inducted in State service. These submissions are recorded. 8. As per the new PG policy, the State without seriously affecting the interests of the regularly recruited doctors 10 in the Himachal Pradesh Health Services has only provided an avenue for the contract service doctors also, in the ratio of 4:1, ensuring in the process that the seats are also increased, bearing in mind also the fact that the regular recruitment in the last 10 years was conducted only on two occasions. Such a policy by the State cannot be said to be un-just or unreasonable or arbitrary or unfair in the above factual background prevailing in the State of Himachal Pradesh. A valid classification has been made by the State out of in-service quota as regularly recruited GDOs and contract GDOs by prescribing a quota for the selection. As held by the Apex Court in Pre PG Medical Sangarsh Committee’s case (supra), it is for the State to evolve its own policy in the matter of filling up of 50% quota. Therefore, the State could have even allocated some percentage of seats to the contract service doctors. 9. There is yet another angle also for this matter. The main justification for providing a quota for in-service doctors is that “on account of their having remained occupied with their service obligations, they became detached or disturbed from the theoretical studies and therefore, could not have done so well as to effectively compete with fresh medical graduates at the PG entrance examinations” (AIIMS Students Union vs. AIIMS (2002) 1 SCC 428.}. In K. Duraisamy vs. State of Tamil Nadu (2001 )2 SCC 538, the said principle was originally laid down and it was followed in State of MP and others vs. Gopal D. 11 Tirthani and others {(2003) 7 SCC 83}. Thus, the contract employees in service of the State itself also do not get time for theoretical studies and in that view of the matter, they are similarly placed as the regularly recruited doctors. 10. The procedure adopted by the State for the selection is that inter-se merit has been considered by classifying them as one group. That certainly is not correct. It will lead to a situation of violation of the quota-rota-rule. Once a reasonable classification has been made and a quota having been fixed for the respective class, the admission can only be in terms of the quota. In other words, in view of the prescribed policy and the prospectus, the quota has to be strictly maintained in the ratio of 4:1 i.e. the first four chances for admission/option of specialties should go to the contract service doctors and it has to be repeated accordingly. However, on facts, we find that this year, the slots given to the contract doctors are only 10, 11 and 15 in place of 5, 10 and 15. Therefore, no serious prejudice has been caused to anybody and we do not propose to interfere with the selection already conducted for the year on that count. But, we make it clear that once a quota is fixed for different classes, the classification having been made validly, the quota has to be strictly followed as explained above. 11. Learned counsel for the petitioners inviting reference to two decisions of this Court; one Jagpal Singh Pandher vs. State of H.P. & Ors. 2003 (2) Cur.L.J. (H.P.) 101 12 and other Lokesh Gupta & Ors. vs. State of H.P. & Ors., 2007 (1) Cur. L.J. ( H.P) 99, submit that this Court has already held that contract service doctors cannot be equated with the regularly recruited doctors. But, it has to be seen that in both the cases, the challenge was made by the contract service doctors claiming the status of regularly recruited in-service doctors, whereas the prospectus did not contain any specific provision or even at that time indication that in-service candidates would include the contract service candidates. This Court in the above decisions analyzed the legal position only in the background of the State policy and prospectus which restricted and permitted the State service quota to the regularly recruited doctors. The position for the year 2010 is entirely different. Taking note of the fact that regular recruitment in the past 10 years had been done only on two occasions, taking note of the fact that the State was able to ensure the service of doctors in the rural and tribal areas for a definite period only by appointment of the contract service doctors, taking note of the fact that the change in the policy of recruitment as above, is also in the background of weak financial position of the State taking note of the fact that contract/outsourcing is an emerging service scenario and also in the background of bond being executed by the contract service doctors for serving the State for a minimum period of five years on acquisition of the Post Graduate qualification, it cannot be said that the decision taken by the State to include such contract 13 doctors also within the larger group of in-service candidates by sub-classifying them as contract service doctors and fixing very limited quota for them is in any way un-just, unreasonable arbitrary or discriminatory. The classification and fixation of quota has been validly and properly done. 12. In the above circumstances, subject to the clarification as to the procedure to be followed in future regarding the 4:1 ratio, the Writ Petitions are dismissed, so also the pending applications, if any. Copy Dasti. (Justice Kurian Joseph), Chief Justice. June 4, 2010. ( Justice Rajiv Sharma), (karan) Judge.