IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. : 628/2009 Reserved on: 1.1.2010 Decided on: 7.1.1010. Prem Chand Machhan. ...Petitioner. Versus State of Himachal Pradesh and others. ... Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the petitioner : Mr. Sunil Mohan Goel, Advocate. For the Respondents : Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder dogra, Additional Advocate General for respondents No.1 to 3. Rajiv Sharma, J. Material facts necessary for the adjudication of this petition are that petitioner obtained postgraduate degree in Medicine from the Himachal Pradesh University after undergoing the course with effect from 28.1.2000 to 29.1.2003. Respondent-State issued an advertisement vide Annexure R-2 whereby applications were invited for filling up the posts of Registrars in the prescribed proforma. Total 8 posts were advertised in the subject of medicine. Out of them, 3 posts were meant for Indira Gandhi Medical College (IGMC) and 5 posts were meant for Dr. Rajindra Prashad Medical Whether the reporters of the local papers may be allowed to see the Judgment? No. 2 College, Tanda. 2 posts were advertised in the subject of Nephrology. Interviews were held on 7.2.2003 and the result was declared vide Annexure R-3. Petitioner was selected for the tenure post of Registrar in the subject of Nephrology. He served in the Department of Medicine from 7.4.2003 to 8.5.2006. Necessary certificate to this effect was issued by the Professor and Head, Department of Medicine, IGMC, Shimla (Annexure P-3). Respondents re-designated three doctors, namely, Dr. Sanjay Mahajan, Dr. Sujit Singh Raina and Dr. Baldev Singh Rana as Assistant Professors vide Annexures P-4, P-5 and P-5/A. Petitioner also made representation on 30.12.2008 seeking re-designation at par with these doctors. The precise case of the petitioner is that though he was selected for the tenure post of Registrar in Nephrology, however, as a matter of fact, he has worked and discharged the duties of Registrar in the subject of Medicine. It is also the case of the petitioner that there is no separate Department of Nephrology. The stand projected by the respondents in the reply is that since the petitioner has been selected against the tenure post of Registrar in the subject of Nephrology, he could not be re- designated/promoted to the post of Assistant Professor in the subject of medicine. In other words, the case of the respondents is that petitioner case can only be considered in the stream of Nephrology. It is also contended that Nephrology is a super-specialty and medicine is merely a specialty. Mr. Sunil Mohan Goel has strenuously argued that in fact his client has worked against the post of Registrar in the subject of Medicine and the certificate to this effect was also issued by the Professor and Head, Department of Medicine, IGMC, Shimla. He further contended that what matter is the substance and not the form. He has termed the action of the respondents not to re-designate the petitioner as Assistant Professor in 3 the subject of medicine illegal, arbitrary, unconstitutional thus violative of Articles 14 and 16 of the Constitution of India. Mr. R.K. Sharma, learned Senior Additional Advocate General by referring to the Recruitment and Promotion Rules has vehemently argued that the petitioner is not qualified to be re-designated/promoted to the post of Assistant Professor in the subject of medicine. He then contended that the petitioner has applied for the post of Registrar in the subject of Nephrology and he cannot claim benefit on the basis of experience certificate issued vide Annexures P-3 and P-10, respectively. I have heard the learned counsel for the parties and have perused the pleadings carefully. It is evident from the Recruitment and Promotion Rules i.e. Annexure P-3/A that to become Assistant Professor (Medicine), a candidate must possess recognized medical qualification, post graduate degree in the concerned specialty and at least 3 years teaching experience as Lecturer-Registrar/Demonstrator/Resident after doing post graduation in the concerned specialty in any recognized Medical College. In order to become Assistant Professor (Super-specialty), a candidate must possess recognized medical qualification, post-graduate and post- doctoral degrees as mentioned in Part-A of Annexure-II or its equivalent. Mr. R.K. Sharma has also drawn the attention of the Court to the Minimum Qualification for Teachers in Medical Institutions Regulations, 1998 (Annexure R-1). In order to become Assistant Professor in the subject of Nephrology, a candidate as per these regulations must possess recognized specialization qualification in the subject and 3 years teaching experience in Nephrology in a recognized Medical College as Resident/Registrar/Demonstrator/Tutor. Respondents have issued advertisement as per Annexure R-2. Petitioner had applied for registrarship in the specialty of Nephrology. He 4 was interviewed on 7.2.2003 and the result was declared vide Annexure R-3. He completed the registrarship with effect from 7.4.2003 to 8.5.2006 in Indira Gandhi Medical College, Shimla. There is no separate department of Nephrology as per Annexure P-11. Nephrology is unit of Medicine Department. Petitioner had given his option at the time of bifurcation of the cadre to be considered for the post in IGMC. Professor and Head, Department of Medicine, IGMC, Shimla has issued the following certificate to the petitioner, the text of which reads thus: “Certified that Dr. Prem Chand Machhan worked in Medicine department of IG Medical College, Shimla as Registrar (Nephrology) for a period of three years and one month (w.e.f. 7.4.2003 to 8.5.2006). During this period, Nephrology department did not function independently and was under Medicine department. He took medicine classes (clinical and theory) of M.B.B.S. students, post graduate students and B.D.S. students. In fact he was registrar-in-charge of teaching of B.D.S. classes. In addition to this, he performed dialysis duty where he did both hemodialysis and peritoneal dialysis of hundreds of patients. He had a very good clinical skill in managing O.P.D., Emergency and Indoor patients. He was a punctual sincere and efficient doctor. I wish him all the success in his future life.” Similarly, the Professor and Head, Department of Medicine sent a communication to the Principal, IGMC on 12.1.2009. The text of communication dated 12.1.2009 reads thus: “I am to invite a reference to your office endorsement No.HFW-(MC)B(2)16/2008-221 dated 3.1.2009 on the subject cited above. In this context, it is submitted that from the list of 30 in service GDOs serving in Health and Family Welfare Department. The following GDOs are having teaching 5 experience after post graduation from the department of Medicine Indira Gandhi Medical College, Shimla:- 1. Dr. Satish Kumar, R.H. Hamirpur 2. Dr. Prem Machhan, DDU Shimla 3. Dr. Deveshwar Pandey, RH, R.Peo This is for your kind information and further necessary action please.” A combined reading of experience certificate i.e. Annexure P-3 and communication dated 12.1.2009 (Annexure P-10) establishes that Nephrology Unit is under the Medicine Department. Petitioner took medicine classes (clinical and theory) of MBBS students, post-graduate students and BDS students. In addition to this, he also performed dialysis duty. Respondents have also issued provisional seniority list of Medical Officers of Himachal Pradesh Health and Family Welfare Department as it stood on 1.7.2008. Petitioner is at Sr. No. 371. One Sh. Sanjay Kumar Mahajan is at Sr. No. 411, Sh. Sujit Raina is at Sr. No. 633 and Sh. Baldev Singh Rana is at Sr. No. 381. Respondent-State has issued 3 notifications Annexures P-4, P-5 and P-5/A dated 18.8.2008 and 16.1.2009 respectively whereby Dr. Sanjay Mahajan, Dr. Sujit Singh Raina and Dr. Baldev Singh Rana have been re-designated Assistant Professors in their own pay scale without any extra remuneration in public interest. Petitioner made representation on 30.12.2008 (Annexure P-7) to the effect that his case for re-designation should be considered at par with these doctors. Petitioner also relied upon duty roster i.e. Annexures P-8/A to P-8/G to establish that he has worked in the Department of Medicine. Mr. Sunil Mohan Goel has also drawn the attention of the Court to Annexure P-11. A bare perusal of Annexure P-11 reveals that there is no separate Department of Nephrology. There is only a Department of Medicine. Petitioner has though been selected as Registrar in the specialty of Nephrology, but practically for all intents and purposes, he has 6 worked in the Department of Medicine. There is no separate Department of Nephrology. The Professor and Head, Department of Medicine, IGMC, Shimla has issued certificate vide Annexure P-3. What matter is the substance and not the form. In fact, from the combined reading of the experience certificate issued by the Professor and Head, Department of Medicine, duty roster Annexure P-11, only conclusion which can be drawn is that the petitioner has worked in the Medicine Department. Simple case of the petitioner is that on the bases of experience certificate issued in his favour, his case should have been considered for redesignation as Assistant Professor in the Department of Medicine. He is not seeking appointment as Assistant Professor in the specialty of Nephrology. He is seeking re-designation/appointment in the subject of medicine. He possesses the minimum qualifications prescribed under the Recruitment and Promotion Rules i.e. Annexure P-3/A. He possesses recognized medical qualification, post graduate decree and 3 years teaching experience as Registrar in the Department of Medicine. The concept of super-specialty was only relevant if petitioner was seeking appointment/re-designation as Assistant Professor in the subject of Nephrology. In case he wanted to be considered for the post of Assistant Professor Nephrology, he was required to possess post-graduate degree and three years teaching experience in Nephrology with additional qualification of MD (Nephrology). It is not denied by the respondents that the petitioner has not taken classes of MBBS students, post graduate students and BDS students while working as a Registrar in IGMC. It is also admitted case that petitioner is senior to Dr. Sanjay Mahajan, Dr. Sujit Singh Raina and Dr. Baldev Singh Rana. The representations made by the petitioner vide Annexures P-7 and P-7/A have not been considered by the respondents in right perspective. The respondents instead of taking corrective measures have sought the explanation of the Head of 7 Department, who has issued Annexure P-3 and P-10 respectively. The Court is of the considered view that the respondents should have considered the case of the petitioner for re-designation to the post of Assistant Professor at par with Dr. Sanjay Mahajan, Dr. Sujit Singh Raina and Dr. Baldev Singh Rana in the subject of medicine. It is a case of invidious discrimination. Petitioner has the same experience, which was obtained by Dr. Sanjay Mahajan, Dr. Sujit Singh Raina and Dr. Baldev Singh Rana in the Department of Medicine. Teaching experience gained by the petitioner is required to be treated teaching experience in the Department of Medicine for all intents and purposes. Accordingly, in view of the observations made hereinabove, the petition is allowed. Respondents are directed to consider the case of the petitioner for re-designation to the post of Assistant Professor in the subject of Medicine in Indira Gandhi Medical College, Shimla from the date persons junior to him have been re-designated with all consequential benefits within a period of four weeks from today. No costs. (Rajiv Sharma), J. 7.1.2010. *awasthi*