2025:HHC:13759 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.7967 of 2024 Date of Decision: 13.05.2025 __________________________________________________________ Dr. Girish Kumar …….Petitioner Versus State of Himachal Pradesh & Others ….Respondents __________________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 Yes. For the Petitioner: Mr. Vishwa Bhushan, Advocate. For the Respondents: Mr. Anup Rattan, Advocate General with Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.Verma, Additional Advocate Generals and Mr. Ravi Chauhan, Deputy Advocate General, for State. Mr. Kulbhushan Khajuria, Advocate, for respondent No.4. __________________________________________________________ Sandeep Sharma, Judge (oral): Being aggrieved and dissatisfied with encadrement and absorption of respondent No.4 in Dr. Radhakrishnan Government Medical College, Hamirpur (for short, ‘Dr. RKGCM, Hamirpur’), against the post of Associate Professor in the Department of Pediatrics vide notification dated 19.07.2024 (Annexure P-9), petitioner herein, who at present is working as an Assistant Professor in afore College in the Department of Pediatrics, has approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein for following main reliefs: 1Whether the reporters of the local papers may be allowed to see the judgment? Yes. 2025:HHC:13759 -2- “(i) That the act of the respondent No. 1 in ordering the encadrement and absorption of the respondent No. 4, a faculty member of the cadre of IGMC Shimla, in the cadre of Dr. RKGMC Hamirpur against the post of Associate Professor in the Department of Pediatrics vide Notification dated 19- 7-2024 (Annexure-P/9) may kindly be held illegal, vague, unwarranted, irrational, unreasonable, unjustified, invalid, arbitrary, discriminatory, violative of Article 14 and 16 of the Constitution of India and contrary to the provisions of Clause 6 of the 'Policy for Cadre Building in Newly Opened Medical College in the State of Himachal Pradesh' notified vide Notification dated 17-11- 2018 (Annexure-P/14) and accordingly, Notification dated 19-7-2024 (Annexure-P/9) issued by the respondent No. 1, may kindly be quashed and set aside. (ii) That the respondent No. 1 may kindly be directed to repatriate the respondent No. 4 to his original post of Associate Professor in the Department of Pediatrics in the cadre of IGMC Shimla forthwith. (iii) That the respondents No. 1 to 3 may further be directed not to consider the representation or request of the respondent No. 4 for further promotion to the post of Professor, Department of Pediatrics in Dr. RKGMC Hamirpur in any manner as the respondent No. 4 is not a faculty members of the cadre of Dr. RKGMC Hamirpur as explained in the petition. (iv) That the respondents may further be directed to promote the petitioner to the post of Associate Professor, Department of Pediatrics in Dr. RKGMC Hamirpur 'in accordance with the provisions of the R&P Rules forthwith considering the post of Associate Professor vacant, alongwith all consequential benefits.” 2. For having bird’s eye view, relevant facts, as emerge from the pleadings adduced on record by respective parties are that petitioner herein after his having completed M.B.B.S. in the year 1996 from Himachal Pradesh University was appointed as Medical Officer on ad hoc basis in the Department of Health and Family Welfare in the respondents-State in the month of July, 1997. Services of the petitioner 2025:HHC:13759 -3- as Medical Officer were regularized vide Memorandum dated 03.10.1998 issued by respondent No.1 on the basis of recommendation made by Public Service Commission. After having done M.D. (Post Graduate Degree) in the subject of Pediatrics from Post Graduate Institute of Medical & Research, Chandigarh, in the year 2014, petitioner served at Dr. R.P. Government Medical College, Kangra at Tanda (for short, Dr. RPGMC, Tanda’) w.e.f. 04.02.2015 to 16.08.2018. After his having done Senior Residency in the Medical College, detailed hereinabove and having his lien in the cadre of Medical Officer, he became eligible to be considered against the post of Assistant Professor. In the year 2017, four new medical colleges i.e. Dr. YSPGMC, Nahan, Pt. JLNGMC, Chamba, SLBSGMC, Mandi at Ner Chowk and Dr. RKGMC, Hamipur came to be opened. Petitioner being fully eligible was given posting as Assistant Professor in the Department of Pediatrics in Dr. RKGMC, Hamirpur and since then, he is working there. 3. I have heard learned counsel representing the parties and gone through the record. 4. It is not in dispute that private-respondent was appointed as Assistant Professor on 14.12.2015 at IGMC, Shimla and since then he has been working in afore institution till his absorption in Dr. RKGMC, Hamirpur vide order dated 19.07.2024 (Annexure P-9) against the post of Associate Professor, Pediatrics. Private-respondent was promoted to the post of Associate Professor in IGMC, Shimla on 14.12.2020, but his 2025:HHC:13759 -4- services were regularized against such post on 24.02.2021. Careful perusal of teaching experience (Annexure R-4/A) (available at page No.121 of the paper-book) placed on record clearly reveals that as many as on four occasions, he was sent to Dr. RKGMC, Hamirpur. Lastly, he remained posted at Dr. RKGMC, Hamirpur w.e.f. 13.06.2023 to 18.06.2023. It is pertinent to take note of the fact that prior to year 2008, cadre of two Medical Board/Colleges i.e. IGMC Shimla and Dr. RPGMC, Tanda was one, but in the year 2008, cadre of both the Colleges were separated and since then, different faculty of both the Colleges have there own cadre. 5. In the year 2017, as many as four new Medical Colleges came to be opened in the State of Himachal Pradesh and w.e.f. 2018, all four newly opened medical colleges have their own cadres, meaning thereby, teaching faculty in respective Colleges could not have been transferred or absorbed in another Medical Colleges located in the State of Himachal Pradesh, however, in the year 2018, Government of Himachal Pradesh promulgated Encadrement Policy (Annexure P-14) vide notification dated 17.11.2018, whereby it came to be notified that cadres of all newly opened Medical Colleges i.e. Dr. YSPGMC, Nahan, Pt. JLNGMC, Chamba, SLBSGMC, Mandi at Ner Chowk and Dr. RKGMC, Hamipur, shall be separate in respect that once a faculty has been permanently absorbed in a new college, he/she shall have no lien or any right of repatriation/transfer, whatsoever to any other 2025:HHC:13759 -5- college/cadre. In terms of aforesaid Policy decision, teaching faculty appointed in afore Colleges neither could claim any repatriation/transfer to any College, including IGMC, Shimla and Dr. RPGMC, Tanda. However, vide Clause No.4.1 of Policy, which is reproduced hereinbelow, State of Himachal Pradesh, with a view to strengthen the newly opened Medical Colleges, decided to permit teaching faculties of IGMC, Shimla and Dr. RPGMC, Tanda, to opt for absorption in newly opened Medical College, but with the condition that after there being permanently absorbed in the cadre strength of new College, they shall not be allowed to change the cadre and repatriation in any eventuality. Clause No.4.1 of afore Policy reads as under: “4.1 Permanent Absorption from IGMC Shimla/Dr. RPGM, Kangra at Tanda: • Options shall be taken from the teaching faculties of IGMC/Dr. RPGMC by Director Medical Education through Principals as per the vacancy, subject to the condition that once the option is exercised for any of the above new Medical Colleges, they will be absorbed permanently in the cadre strength of the concerned Medical College and change of cadre or any repatriation shall not be alloįved in any case. • Such options shall be exercised for a limited period of time in a year for a month only. • The faculty members of the IGMC Shimla and Dr. RPGMCTanda opting for new Medical Colleges shall be posted on the equivalent posts. • They shall be considered for promotion to the next higher post by counting their past service/teaching experience, subject to their fitness and suitability in new cadre. • In general, the faculty willing to be absorbed shall be considered for promotion only after absorption in new cadre only. 2025:HHC:13759 -6- However, they shall be considered for higher post in new college only if ➢ No other faculty has exercised the form of option for the higher post in the new Medical College. ➢ The faculty exercising the form of option is eligible for higher post.” 6. It would be also apt to take note of Clause No.6 of Policy, which reads as under: “6. Promotion posts. - The promotion posts (Professor, Associate Professor etc.) in the new medical college shall be filled by the following methods: (a) Promotion through DPC in case of any regular faculty member (excluding contract) in the new college who is willing to be promoted in the same college against a vacancy for which he is eligible, subject to the condition that he/she gives his/her willingness to get absorbed permanently in the cadre of that Institute and relinquishes any claim/right of lien/repatriation/transfer to any other cadre. (b) Failing which, by absorption from willing faculty from IGMC Shimla/Dr. RPGMC, Kangra at Tanda, provided that: • If there is only one faculty who is willing for a particular post in new medical college, then the same shall be considered. • If the option is received from two or more than two eligible faculty members then the option will be considered as per seniority of the eligible faculty members, with the senior most to be encadred in new Medical College. (c) Failing which, by direct recruitment as per R&P rules through HPPSC/Walk in interview as decided by Government from time to time.” 7. As per Clause No.6, promotion post i.e. Professor, Associate Professor in the new Medical College shall be filled by method, as detailed in afore Clause of Policy. If the aforesaid provision is read in its entirety, it clearly suggests that afore promotional post, though 2025:HHC:13759 -7- at first instance would be filled up through D.P.C,. meaning thereby, candidate, if eligible in new college, shall be offered posting to the post of Professor, Associate Professor, but in case eligible candidate is not available, then option will be taken from teaching faculty of two colleges i.e. IGMC, Shimla and Dr. RPGMC, Tanda. 8. Precisely, the grouse of the petitioner as has been highlighted in the petition and further canvassed by Mr. Vishwa Bhushan, learned counsel representing the petitioner is that respondents without resorting to the procedure, as laid down in Clause No.6 of the Policy, straightaway accepted the option exercised by private-respondent, as a result thereof, petitioner, who at relevant time was working as a designated Associate Professor, came to be denied the chance of being promoted against the post of Associate Professor in Dr. RKGMC, Hamirpur, in terms of Clause No.6. Mr. Vishwa Bhushan, learned counsel representing the petitioner while referring to the reply filed on behalf of respondents vehemently argued that while seeking option from the teaching faculty of IGMC Shimla and Dr. RPGMC, Tanda, no intimation was ever given to newly opened Medical College at Hamirpur, as a result thereof, process for convening D.P.C. for asserting the suitability of eligible candidates, if any, in the newly opened medical College in Hamirpur was never convened. He submitted that had respondents intimated Dr. RKGMC, Hamirpur, with regard to proposal, if any, to fill up the vacancy by seeking option from the Doctors serving at 2025:HHC:13759 -8- IGMC, Shimla and Dr. RPGMC, Tanda, petitioner who was in line of promotion to the post of Associate Professor, being senior-most Assistant Professor, could have also got chance to be considered for promotion against the post of Associate Professor. While making available copy of communication dated 16.09.2024, issued under the signatures of Director, Medical Education & Research, Himachal Pradesh, Mr. Vishwa Bhushan, learned counsel representing the petitioner stated that in past, information was being given to the College, for which option was being called from the Doctors/teaching faculty of IGMC, Shimla and Dr. RPGMC, Tanda, however, this time, with a view to give undue benefit to the private-respondent, no intimation was given to Dr. RKGMC, Hamirpur. 9. Mr. Anup Rattan, learned Advocate General while objecting to placing of aforesaid communication, submitted that though aforesaid communication cannot be taken on record, being outside the pleadings, but even otherwise same has no relevance as the same is of dated 16.09.2024, whereas process in the case at hand stood completed in the month of July 2024. Though having perused Policy in its entirety, especially Clause Nos.4 and 6, this Court finds merit in the submission of learned counsel representing the petitioner that at first instance, promotion, if any, to the post of Professor, Associate Professor is to be made by way of convening D.P.C., so that in-service candidate i.e. Doctors or teaching faculty working in the institution for which absorption 2025:HHC:13759 -9- is being made, is not made to suffer, rather he or she is provided first opportunity to be selected against the post, otherwise proposed to be filled-up by way of absorption from Doctors working in IGMC, Shimla or Dr. RPGMC, Tanda. However, in the instant case, it is not in dispute, rather stands duly admitted that at the time of making of application by private-respondent i.e. February 2024, petitioner herein was not eligible to be considered against the post of Associate Professor on account of his not having requisite teaching experience as Assistant Professor. 10. Admittedly petitioner herein became eligible for his being appointed against the post of Associate Professor in the month of April 2024, if it is so, there was otherwise no question, if any, for convening D.P.C. Though reply filed by respondents suggests that process for convening D.P.C. was initiated, but before same could be taken to its logical end, Model Code of Conduct was imposed by Election Commission of India on account of Lok Sabha Elections, which ultimately came to be lifted on 06.06.2024. Though this Court does not find any material worth credence available on record, suggestive of the fact that candidature of the petitioner, if any, was ever considered by the D.P.C., but once it is not in dispute that at relevant time petitioner was not eligible to be appointed against the post of Associate Professor on account of his not having requisite experience as Assistant Professor, coupled with the fact that Director, Medical Education, being custodian of record is fully aware of service record of Doctors working in Medical 2025:HHC:13759 -10- Education Department, aforesaid omission, if any, may not be of much consequence, especially when there is nothing to suggest that private- respondent at the time of consideration of his candidature by way of option was not eligible, rather pleadings adduced on record clearly reveals that private-respondent prior to his being absorbed as Associate Professor in Dr. RKGMC, Hamirpur, was working as Associate Professor in IGMC, Shimla since 14.12.2020. 11. Though this Court is persuaded to agree with Mr. Vishwa Bhushan, learned counsel representing the petitioner that factum of private-respondent working as Associate Professor in IGMC, Shimla, may not be of much relevance as far as his absorption in Dr. RKGMC, Hamirpur, in terms of Encadrement Policy, is concerned, but yet this Court cannot lose sight of the fact that prior to his absorption in Dr. RKGMC, Hamipur, private-respondent was already working as Associate Professor at IGMC, Shimla and he had actually applied for the post of Professor, but in terms of Encadrement Policy, such post could not be offered to him. Though Mr. Vishwa Bhushan, learned counsel representing the petitioner attempted to argue that had respondent allowed D.P.C. proceedings to conclude, petitioner herein would have become eligible, but once it is not in dispute that process to fill-up the post of Associate Professor in Dr. RKGMC, Hamirpur, stood initiated in the month of February 2024, on the basis of application made by the private-respondent, which was subsequently forwarded by the Director, 2025:HHC:13759 -11- Medical Education and Principal of College concerned and at that time, petitioner herein was not eligible, non-conclusion of D.P.C. proceeding, if any initiated, may not be of much help to the case of the petitioner. 12. At this stage, Mr. Anup Rattan, learned Advocate General apprised this Court that D.P.C. proceedings could not be concluded on account of stay granted by this Court, but as and when stay order granted by this Court is vacated, petitioner herein can be considered against the post, otherwise available for promotion to the post of Associate Professor, being most eligible candidate. He further stated that apprehension of petitioner that he, on account of appointment of private- respondent as Associate Professor, at this juncture would not be able to become Associate Professor is wholly misplaced, because in future, there is every possibility to creation of more posts of Professor in the Department of Pediatrics, qua which petitioner can always be appointed, subject to his eligibility. Though Mr. Vishwa Bhushan, learned counsel representing the petitioner vehemently argued that on account of non- convening of D.P.C. in terms of Clause No.6 of Policy, entire process, by which private-respondent came to be absorbed in Dr. RKGMC, Hamirpur, against the post of Associate Professor is vitiated, but for the reasons detailed hereinabove, this Court is not persuaded to agree with Mr. Vishwa Bhushan, learned counsel representing the petitioner. Had Mr. Vishwa Bhushan succeeded in showing to this Court that at the time of consideration of the case of the private-respondent for absorption in 2025:HHC:13759 -12- Department of Pediatrics as Associate Professor, petitioner herein was also eligible, this Court would have not hesitated in declaring entire process bad in law, but once on relevant date, petitioner was not eligible, coupled with the fact that private-respondent was already working as Associate Professor in IGMC, Shimla, while he applied for his absorption in newly opened Medical College and in past, he had been also rendering the service in Dr. RKGMC, Hamirpur, on intermittent basis, with a view to provide expert services to the residents of the area, there appears to be no justification to accept the prayer made on behalf of the petitioner. Last submission of Mr. Vishwa Bhushan, learned counsel representing the petitioner that no process for absorption could have been initiated by the Department on the basis of application submitted by petitioner is also ill-founded and deserves outright rejection. 13. No doubt, as per reply filed by the respondents, private- respondent while working as Associate Professor in IGMC, Shimla, applied for absorption against the post of Professor at Dr. RKGMC, Hamirpur, but it is quite apparent from the reply as well as documents adduced on record by the respondents that application filed by the petitioner was forwarded/recommended by the Director, Medical Education as well as Principal of the College concerned. Once recommendations were made by the authorities, as detailed in Clause No.4 of the Policy, process was initiated for absorption of private- respondent against the post in question. Similarly, it cannot be said that 2025:HHC:13759 -13- before initiating process in terms of Clause No.4, College concerned had not initiated process for convening D.P.C. in terms of Clause No.6, rather it is quite apparent from the material adduced on record that process for convening D.P.C. was started, but before same could be taken to its logical end, Model Code of Conduct was imposed by the Election Commission of India on account of upcoming Lok Sabha Elections. Before Model Code of Conduct could be lifted by Election Commission of India, competent authority, taking note of service record of petitioner, arrived at a conclusion that he is not eligible to be considered against the post in question at relevant time and accordingly allowed the application made by the petitioner for his absorption against the post of Associate Professor. 14. Consequently, in view of detailed discussion made hereinabove, this Court finds no merit in the present petition and accordingly the same is dismissed, but before parting, this Court hopes and trusts that respondents shall ensure that D.P.C. for the post of Associate Professor, which is said to be lying vacant, shall be convened expeditiously, preferably, within a period of two months. The writ petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any. (Sandeep Sharma), Judge May 13, 2025 (Rajeev Raturi)