IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) No. 198 of 2010 Dr. Bhupinder Singh Gujral ……… Petitioner Versus Bharat Heavy Electricals Ltd., Haridwar & others ………. Respondents Mr. Mahavir S. Tyagi, Advocate for the petitioner Mr. V.K. Kohli, Senior Advocate with Mr. T.C. Pandey, Advocate for respondent Nos. 1, 2, 3 and 5. Date of Judgment: 10.11.2010 JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble Nirmal Yadav, J. BARIN GHOSH, C.J. (ORAL) In the advertisement responded by the writ petitioner, it was indicated, amongst others, that five vacancies are available for General Duty Medical Officers at Haridwar and one vacancy is available for Senior Medical Officer (Radiology). For the posts of General Duty Medical Officers, the required qualification, as was advertised, was MBBS with one year’s experience; whereas for the post of Senior Medical Officer (Radiology) the minimum advertised qualification was MBBS plus Post Graduate degree (3 years) in Radiology with one year’s relevant experience. In the advertisement, it was stated that in case no eligible candidate with prescribed qualification for Senior Medical Officer (Radiology) is found, those having Post Graduate diploma in Radiology may be considered. It was indicated in the advertisement that all medical degrees should be recognized by Indian Medical Council. Petitioner, who is MBBS and does not have a Post Graduate degree (3 years) in Radiology, applied for the post of Senior Medical Officer (Radiology), indicating therein that he has MBBS degree as well as a Post Graduate diploma in Radiology. Petitioner, therefore, applied for being considered for the post of Senior Medical Officer (Radiology), in the event no one is available having MBBS plus Post Graduate Degree (3 years) in Radiology to supply the said vacancy. Petitioner was selected, in as much as no person having MBBS plus Post Graduate degree (3 years) in Radiology was available. After selection, petitioner was offered an appointment as 2 Medical Officer (Radiology) and not Senior Medical Officer (Radiology). Petitioner was offered the pay scale applicable to Medical Officers and not to Senior Medical Officers. Petitioner accepted the offer of appointment. Subsequently, petitioner was issued a show-cause notice, wherein it was stated that the Post Graduate diploma of the petitioner is not a recognized diploma and, accordingly, petitioner could not represent to have had a Post Graduate diploma in Radiology, but he did so and on the basis thereof obtained the appointment in question. In the show-cause notice, it was indicated, why the appointment of the petitioner shall not be terminated. In reply to the show-cause, petitioner held out that he never represented that Post Graduate diploma obtained by him was recognized by Indian Medical Council. He further held out that the said diploma was given by the University after having had completed the course from the selfsame college from where he obtained his MBBS degree. He further stated that the advertisement did not mention that the diploma too is required to be recognized by Indian Medical Council. Taking note of acceptance of the petitioner in his reply to the show-cause that the diploma obtained by the petitioner is not recognized, by the order impugned in the writ petition the services of the petitioner have been terminated. 2. In course of arguments, the learned counsel, on being instructed by the petitioner, submitted that in the event, for non-recognition of the diploma of the petitioner by Indian Medical Council, petitioner is not qualified to hold the post that was offered to him, and had the same been indicated to him, the petitioner of his own volition, resigned and left the services of the respondent, but no such opportunity was given to the petitioner. Learned counsel for the petitioner submitted that though the diploma was not recognized by Indian Medical Council at the time when petitioner had applied, but the fact remains that the petitioner indicated what diploma he obtained and from where such diploma was obtained. A little endeavour at that stage, as was made subsequently by the respondent – employer, could make it clear that the said diploma was not recognized nor the college which conferred the diploma was recognized by Indian 3 Medical Council. In such circumstances, it was not appropriate on the part of the respondent – employer, while terminating the services of the petitioner, to hold out that the petitioner is guilty of deceit. The learned counsel for the respondent – employer submitted that in accordance with the mandate of the advertisement, the petitioner could not be appointed in the post in which he was appointed for he did not have a Post Graduate diploma. Learned counsel submitted that to the notice of the petitioner, the petitioner did not have a Post Graduate diploma for, admittedly, the same was and still is not recognized by Indian Medical Council. Learned counsel submitted that the petitioner in his application held out that he is a diploma holder and accepting the same, the appointment was given to the petitioner. Learned counsel submitted that the respondent – employer, in the circumstances, had issued the order of termination. 3. Taking into account the aspects as above and considering the fact that the diploma obtained by the petitioner was accorded by a Government College, we dispose of this writ petition by permitting the petitioner to submit a letter of resignation dating the same when he replied the show-cause notice, and in the event such a letter of resignation is given within a period of 15 days from today, let the same be accepted by the respondent – employer with effect from the date the services of the petitioner were terminated within a 15 days from the date of receipt of the said resignation letter upon withdrawing the order of termination. (Nirmal Yadav, J.) (Barin Ghosh, C.J.) 10.11.2010 10.11.2010 Amit