IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 519 of 2020 Date of Decision: 30.04.2025 _______________________________________________________ Dr. Shruti Anand …….Petitioner Versus State of Himachal Pradesh and another … Respondents ______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner: Mr. Surender Sharma, 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. _______________________________________________________ Sandeep Sharma, Judge(oral): By way of instant petition filed under Article 226 of the Constitution of India, petitioner has prayed for following main relief:- “ Issue writ of mandamus directing the respondent authorities to regularize the services of the petitioner w.e.f.5th March 2007 instead of w.e.f.22.02.2012 when the services of her juniors were regularized after putting on 7th month adhoc service whereas the services of the petitioner were regularized after putting on 10 years services.” 2. Precisely, the facts of the case as emerge from the record are that the petitioner, who at present is working as Assistant Professor(designated) in the Department of Ophthalmology at Dr. 1Whether the reporters of the local papers may be allowed to see the judgment? 2 Radhakrishnan Government Medical College, Hamirpur, District Hamirpur, Himachal Pradesh (for short “ RKGMC, Hamirpur) was initially appointed as Medical Officer on adhoc basis vide order dated 16.10.2002 (Annexure P-1) in the pay scale of Rs. 7880-13500 with initial start of Rs. 8000/- per month plus allowances as admissible under rules for a period of six months, but she continued to work on adhoc basis till her regularization vide order dated 02.12.2014 (Annexure P-2). Vide afore order, petitioner came to be regularized w.e.f. 22.02.2012 i.e. after completion of total six years adhoc/contract service by counting her adhoc services rendered in the department from 16.10.2002 to 29.03.2005 and from the date of joining duties back in the department after completion of PG on 09.06.2008. For completion of facts, it is pertinent to take note of the fact that after her being appointed on adhoc basis, petitioner though applied for MD/MS Course in the State of Jammu & Kashmir, but without the permission of the respondents. After being selected for MD/MS Course, petitioner vide letter dated 18.04.2005(Annexure P-3) addressed to the Secretary (Health) to the Government of Himachal Pradesh, prayed for grant of Extra Ordinary Leave without pay, enabling her to join the MD/MS Course at Jammu & Kashmir. Though afore prayer made on behalf of the petitioner was not considered, but she without waiting for the outcome of the representation dated 18.04.2005, proceeded to 3 join the course at Jammu & Kashmir. After her having completed MD/MS Course in the State of Jammu & Kashmir, petitioner re-joined as Medical Officer at PHC, Ghini in the year 2008 (w.e.f. 9th June 2008). 3. While petitioner was pursuing her MD/MS course in the State of Jammu & Kashmir, Government of Himachal Pradesh vide communication dated 15.11.2006 (Annexure R-1) decided to regularize the services of all Medical Officers appointed upto the year 2005 on adhoc basis. Pursuant to aforesaid decision taken by the Government of Himachal Pradesh services of as many as 398 Medical Officers came to be regularized from the date of their appointments on adhoc basis w.e.f.05.03.2007 (Annexure P-6), however, name of the petitioner, who was also appointed on adhoc basis in the year, 2002 was not considered for regularization. After issuance of aforesaid order of regularization made in favour of other similar situate persons, petitioner filed representation dated 18.06.2010, praying therein for regularization from the date of her joining services on adhoc basis in the year, 2002 i.e. 05.03.2007. However, such prayer of her was not accepted, rather vide order dated 02.12.2014 (Annexure P-2), services of the petitioner came to be regularized w.e.f. 22.02.2012 i.e after completion of total six years of adhoc/ contract service by counting her adhoc services rendered in 4 the Department from 16.10.2002 to 29.3.2005 and from the date of joining duties back in the Department after completion of PG on 09.06.2008. 4. Precisely, the grouse of the petitioner as has been highlighted in the petition and further canvassed by Mr. Surender Sharma, learned counsel for the petitioner, is that once respondents having taken note of application, dated 18.04.2005 (Annexure P-3) had granted ex-post facto sanction for extra ordinary leave in favour of the petitioner w.e.f.30.03.2005 to 08.06.2008 and thereafter, petitioner was on maternity leave w.e.f.13.06.2009, there was no occasion, if any, for the respondents not to consider aforesaid period, while considering the case of the petitioner for regularization in terms of policy decision taken by the Government of Himachal Pradesh in the year, 2006. 5. While making this Court peruse copy of order dated 13th July 2009 (Annexure P-4 annexed with the rejoinder), Mr. Sharma, learned counsel for the petitioner, vehemently argued that once respondents themselves taking note of prayer made by the petitioner, proceeded to grant ex-post facto sanction for extra ordinary leave for the period, as detailed hereinabove, period regularized vide aforesaid order was required to be taken into consideration, while considering the case of the petitioner for regularization in terms of policy decision 5 taken by the Government of Himachal Pradesh. While making this Court peruse order dated 11.06.2009 (Annexure P-5) passed by Government of Himachal Pradesh in the case of Dr. Lokinder Sharma, learned counsel for the petitioner further argued that in similar facts and circumstances, Government of Himachal Pradesh besides granting benefit to Dr. Lokinder Sharma also granted similar benefit to Dr.Nalneesh, who though, at first instance, had tendered his resignation, enabling him to pursue higher studies, but since his resignation was not accepted, period spent by him during studies was subsequently regularized as extra ordinary leave and thereafter, aforesaid period was taken into consideration for regularization as well as for ACP. He further submitted that as per order dated 13th July, 2009 (Annexure P-4) period of extra ordinary leave will not be counted for pension or increment, but certainly such period ought to have been taken into consideration for regularization. Lastly, learned counsel for the petitioner contended that once petitioner after her having completed MD/MS Course was permitted to re-join at PHC, Ghini as Medical Officer and there is nothing on record to suggest that disciplinary proceedings, if any, of any kind were initiated against the petitioner on account of her having joined course at Jammu & Kashmir without the permission of the Government, coupled with the fact that respondents, while regularizing the services of the petitioner, 6 took into consideration service rendered by her w.e.f.2002 to 2005, reasons assigned by the respondents in the reply for not acceding to the request of the petitioner is wholly untenable. 6. To the contrary, Mr. Rajan Kahol, learned Additional Advocate General, while justifying the impugned action of the respondents, vehemently argued that once it is not in dispute that petitioner without obtaining necessary permission from the competent authority, proceeded to join MD/MS Course in the State of Jammu & Kashmir, no illegality can be said to have been committed by the respondents, while not taking into consideration aforesaid period for the purpose of regularization. He further submitted that since petitioner was serving on adhoc basis, there was no requirement for the respondents to initiate disciplinary proceedings on account of her having joined MD/MS Course in the State of Jammu & Kashmir without the permission of the Government. He further submitted that since at the time of issuance of office memorandum dated 05.03.2007, whereby 398 doctors came to be regularized, petitioner was not working on adhoc basis, there was no occasion, if any, for the respondents to consider her regularization from afore date. He further submitted that though petitioner in the case at hand ought to have been given regularization after her having completed five years service from the date of her re-joining w.e.f. 2008, but yet 7 Government taking lenient view counted her service rendered prior to 2005, but in no circumstance, period spent by her in the State of Jammu & Kashmir for pursuing MD/MS Course could be taken into consideration for the purpose of regularization. 7. Having heard learned counsel for the parties and perused material available on record, this Court finds that petitioner herein was appointed as Medical Officer on adhoc basis w.e.f. 16.10.2002 and she in afore capacity, kept on working at PHC, Ghini till the year 2005, whereafter, she proceeded to State of Jammu & Kashmir for pursuing MD/MS Course. 8. Though, careful perusal of communication dated 18.04.2005 (Annexure P-3) suggests that petitioner herein before proceeding to State of Jammu & Kashmir, prayed for grant of extra ordinary leave, enabling her to pursue higher studies, but since no reply was received from the Government, she without there being any permission, proceeded to join MD/MS Course in the State of Jammu & Kashmir. It is also not in dispute that after her having completed MD/MS Course, she again joined in the Department of Health and no objection at that time was ever raised, rather she was given posting at Civil Hospital, Arki as Ophthalmologist. 9. There is nothing on record to suggest that disciplinary proceedings of any kind were initiated by the State of Himachal 8 Pradesh for petitioner’s having joined MD/MS Course in the State of Jammu & Kashmir without there being any permission. Similarly, there is nothing on record to suggest that at the time of her joining at Civil Hospital, Arki in the year, 2008, she was offered new appointment, rather she on the basis of her initial appointment made in the year, 2002 was permitted to work at new station. In the year 2006, Government of Himachal Pradesh decided to regularize the services of all Medical Officers, who were appointed prior to 2005 on adhoc/ contract basis. Though, in terms of aforesaid decision, services of 398 Doctors came to be regularized w.e.f. 05.03.2007 (Annexure P-6), but petitioner herein was not given regularization from afore date for the reason that she remained absent for more than three years w.e.f.30.03.2005 to 08.06.2008 without there being valid permission from the Government of Himachal Pradesh. 10. True, it is that at the time of petitioner joining MD/MS Course in the State of Jammu & Kashmir, she was not granted any valid sanction, but once it is not in dispute that vide order dated 13th July 2009(Annexure P-4), prayer made on behalf of the petitioner for grant of extra ordinary leave for the period w.e.f. 30.03.2005 to 08.06.2008 was accepted and her aforesaid period was regularized, subject to the condition that such period will not be counted for pension or increment, there was no occasion, if any, for the 9 respondents to not take into consideration afore period for regularization. 11. Interestingly, in the case at hand, respondents, while considering the representation of the petitioner for regularization from due date, though took into consideration period w.e.f. 2002 to 2005, which she actually served prior to her joining in MD/MS Course in the year, 2005, but for unknown reason excluded the period spent by her in her studies w.e.f. 30th June, 2005 to 8th June, 2008, which admittedly was regularized subsequently by the Government of Himachal Pradesh itself vide order dated 13th July, 2009. No doubt, perusal of order dated 13th July, 2009 suggests that ex post facto sanction was granted for extra ordinary leave starting from 30.03.2005 to 08.06.2008, but that would not mean that afore period could not have been taken into consideration for counting the period for regularization, especially when respondents, while passing afore order made afore decision, subject to the condition that period of extra ordinary leave will not be counted for the purpose of pension or increment to the said doctor. In case, respondent-Department had no intention to count aforesaid period for regularization, it would have definitely mentioned in order dated 13th July, 2009 that aforesaid period shall not be taken into consideration for regularization, however such order never came to be passed. 10 12. Leaving everything aside, once there is nothing on record to suggests that on account of petitioner’s having joined MD/MS Course in the State of Jammu & Kashmir without the permission of the Government, disciplinary proceedings were initiated, coupled with the fact that she was permitted to re-join in the department in the year, 2008 and thereafter, her request for regularization of period of absence as extra ordinary leave w.e.f. 30.03.2005 to 08.06.2008 was accepted, there appears to be merit in the contention of learned counsel for the petitioner that she ought to have been given regularization from the date when other similarly situate persons were granted regularization i.e. 05.03.2007. There is no specific answer to the question raised by the petitioner with regard to similar treatment given to Dr. Lokinder Sharma and Dr.Nalneesh. Careful perusal of order dated 11.06.2009 (Annexure P-5) clearly reveals that above named persons had also joined higher courses without there being any permission from the Government, but yet period spent by them in their studies was taken into consideration, while regularizing their services. 13. Though, at this stage, Mr. Rajan Kahol, learned Additional Advocate General, attempted to argue that above named doctors had tendered their resignation, but such fact, if any, may not be of much relevance for the reason that their resignations were 11 never accepted and without acceptance of the resignations, they proceeded to join higher courses and after their having completed higher courses, they were not only permitted to rejoin, but period spent by them in higher courses was taken into consideration for the purpose of regularization. If it is so, petitioner, who otherwise was granted ex post facto sanction qua the period, she spent for higher studies deserves similar treatment. 14. Consequently, in view of the detailed discussion made hereinabove, this Court finds merit in the present petition and accordingly same is allowed. The respondents are directed to regularize the services of the petitioner w.e.f. 5th March 2007, instead of 22.02.2012, when the services of her juniors were regularized with all consequential benefits, save and except those benefits, which are restricted in order dated 13th July 2009 (Annexure P-4) i.e. period of extra ordinary leave will not be counted for pension and increment. Pending application, if any, also stand disposed of. (Sandeep Sharma), Judge April 30, 2025 (shankar)