Dr. Vivek Kumar vs State Of Himachal Pradesh And Others

Ajay Mohan Goel, J

By way of this writ petition, the petitioner has inter alia prayed for the following relief:-

“(i) That the respondents may kindly be directed to count the past service of the petitioner for seniority and consequential benefits specially service rendered on contract basis.”

The case of the petitioner is that he was appointed as a Medical Officer, on contract basis, in the year 2012. In the year 2014, he applied to undergo Post Graduation Course in Dr. Rajinder Prasad Government Medical College, Tanda at Kangra, Himachal Pradesh, for which, he was selected. In terms of averments made in the writ petition, the petitioner “verbally requested” the respondents for issuance of a no objection certificate but the same was denied by respondent No. 2. According to the petitioner, thereafter on 28.06.2014, the Department terminated his contract agreement without issuing any show cause notice. It is further averred in the writ petition that the petitioner completed his Post Graduation course in the year 2017. Thereafter, he was engaged as an Assistant Professor and was posted in Dr. Y.S. Parmar Post Graduate Medical College, Nahan, on contract basis. According to the petitioner, he is entitled to the reliefs as prayed for in the writ petition in light of the fact that as the termination of his contractual service was bad, so he is entitled for the counting of the contract service rendered by him for the purpose of seniority and consequential benefits along with his present service.

Learned Counsel for the petitioner argued that the petitioner joined the Post Graduation course after due permission was granted in his favour to do so, which as per him was evident from Annexure P-5, which is a copy of information obtained under the Right to Information Act, which was gained by learned Counsel for the petitioner himself for the petitioner, appended with the rejoinder filed to the reply of the respondents. He submitted that as the termination of the petitioner in the year 2014 was without issuance of any show cause etc. therefore also, the same was bad in law.

On the other hand, learned Additional Advocate General, has opposed the writ petition. He submitted that as the petitioner remained absent unauthorisedly from duty, therefore, in terms of the terms and conditions/instructions for recruitment/appointment on contract basis, dated 05.03.2009, appended with the reply as Annexure R-1, the services of the petitioner were dispensed with. He further submitted that subsequent engagement of the petitioner after he did his Post Graduation was in a Medical College which otherwise had got nothing to do with the earlier appointment of the petitioner which was with the Health Department of the Government of Himachal Pradesh. Accordingly, he submitted that as there is no merit in the present writ petition, the same be dismissed.

I have heard learned Counsel for the petitioner as well as learned Additional Advocate General and I have also carefully gone through the pleadings as well as documents appended therewith.

The facts as stand narrated by me hereinabove are not much in dispute. The petitioner was initially appointed on contract basis as a Medical Officer in the year 2012. He was appointed as a Medical officer, on contract basis in the Health Department of the Government of Himachal Pradesh. Thereafter, he participated in the process of selection to undergo Post Graduation course as a direct category candidate. In the year 2014, he was selected to undergo said course in Dr. Rajinder Prasad Government Medical College, Tanda at Kangra. However, the petitioner did not seek any no objection from his employer before he applied to undergo the Post Graduation course. His contention that he verbally sought the permission, which was rejected, cannot be believed in the absence of any document placed on record by the petitioner to substantiate this fact. Evidently, when the petitioner did not turn up for his duties, the respondents had no other option but to terminate his services in terms of instructions dated 05.03.2009, copy whereof is appended with the reply filed by the respondents as Annexure R-1.

It is evident also from the pleadings that after the petitioner completed his Post Graduation, in terms of Annexure P-4, he was engaged on contract basis as an Assistant Professor in Dr. Y.S. Parmar Post Graduate Medical College at Nahan.

Before proceeding further, it is relevant to mention that a perusal of the relief clause which stands quoted, demonstrates that there is no challenge in the writ petition to the termination of services of the petitioner on contract basis in the year 2014.

Be that as it may, the fact of the matter is that the services of the petitioner as a Medical Officer were terminated in the year 2014 when he did not appear to perform his duties as he had joined the Post Graduation course without the consent of the employer. This termination of his was never assailed by the petitioner and same has not even been assailed in this writ petition.

Besides this, the appointment of the petitioner as a Medical Officer was in the Health Department of the Government of Himachal Pradesh whereas his engagement as an Assistant Professor was in a different Department being run by the Department of Medical Education and Research. The two departments mentioned hereinabove are completely different and they have nothing to do with each other as far as seniority etc. is concerned.

The contention of learned Counsel for the petitioner that the appointment of the petitioner was with the consent of the Department in terms of the Annexure P-5, appended with the rejoinder, is completely mis-conceived. In fact, in terms of this document, the following query was raised under the Right to Information Act which was also replied as under:-

Requisite information as sought

Reply under RTI Act-2005

I

Kindly supply the copy of permission, which has been given by your Department for doing the Post Graduate course of Dr. Vivek Kumar, (PMIS) 23707 presently working as Associate Professor (Orthopedics) at Dr. Y.SP Govt. Medical College Nahan at Sirmour, District Sirmour (HP)

The said Doctor has done PG as direct candidate and the Department provide permission to the GDO, the Photocopy of Agreement Bond is attached as (Annexure –A)

A perusal of the reply clearly demonstrates that what is mentioned therein is that the petitioner did his Post Graduation course as a direct category candidate whereas the permission was being granted to undergo the course only to GDOs, that is to say, in-service candidates. Therefore, it is evident and apparent from the record that the petitioner had undergone his Post Graduation course without the permission of the employer and the submission of learned Counsel for the petitioner to the contrary is completely wrong. Termination was in the year 2014 as Medical Officer on contract basis whereas his current engagement is as an Assistant Professor in a Medical College where he was again appointed on contract basis in the year 2021. These two are completely different services.

In view of above discussion, as this Court does not find any merit in the present petition, the same is accordingly dismissed. Pending miscellaneous application(s), if any, also stand disposed of accordingly.