IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.2451 of 2025 Date of Decision: 02.04.2025 _______________________________________________________ Dr. Reetika Sharma …….Petitioner Versus The State of Himachal Pradesh & others … Respondents _______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 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. _______________________________________________________ Sandeep Sharma, Judge(oral): In the year 2022, petitioner was appointed as Assistant Professor (Permanent) in the Department of Pathology at IGMC, Shimla, however, she was sent to Dr. RKGMC, Hamirpur, District Hamirpur, Himachal Pradesh on deputation basis and till date, she has been serving at the same station on deputation basis. In the month of December, 2024, all India Institute of Medical Sciences, Bilaspur, Himachal Pradesh (hereinafter referred to as “AIIMS”) issued advertisement, thereby inviting application for recruitment of teaching faculty in various Departments. Petitioner being eligible for the post of Associate Professor (Pathology) also submitted her 1Whether the reporters of the local papers may be allowed to see the judgment? 2 application, but since her prayer for grant of ‘NOC’ was not being considered by the Department, she approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein for following main relief:- “ That the respondents/respondents No.1 and 2 may kindly be directed to issue No objection Certificate (NOC) and other certificates in favour of the petitioner for the purpose of recruitment to the post of Associate Professor, Department of Pathology in all India Institute of Medical Sciences Bilaspur, District Bilaspur, Himachal Pradesh.” 2. Vide order dated 19.02.2025, this Court directed respondent No.1 i.e. Secretary (Health) to the Government of Himachal Pradesh to issue provisional ‘No Objection Certificate’ in favour of the petitioner, enabling her to appear in the interview for the post in question at AIIMS, Bilaspur. Pursuant to aforesaid order, petitioner herein was issued ‘NOC’. Now petitioner stands selected at AIIMS, Bilaspur against the post, she had applied for. 3. Pursuant to the notices issued in the instant proceedings, respondent Nos. 1 to 3 have filed reply under the affidavit of Special Secretary (Health) to the Government of Himachal Pradesh, wherein prayer made on behalf of the petitioner has been opposed on the ground that since Government Medical Colleges in the State are facing acute shortage of faculty members, it may not be possible to issue ‘NOC’ or relieve any faculty member. It has been further averred in the reply that in the last academic year, National Medical Council imposed penalty of Rs.12 Lakh per Government Medical College due to deficiency of staff. If the reply filed by the respondents is read in its entirety, it nowhere suggests that the 3 petitioner herein, while joining as Assistant Professor at IGMC, Shimla, had ever furnished undertaking or surety bond, thereby agreeing to serve State of Himachal Pradesh for specified period. It is also apparent to take note of the fact that after her having cleared the examination for the post in question at AIIMS, Bilaspur, she has submitted her resignation from the post of Assistant Professor in the Department of Pathology at IGMC, Shimla, which has been not accepted till date. 4. To verify aforesaid claim of the petitioner, this Court called upon learned Additional Advocate General to verify the status of resignation, if any, submitted by the petitioner. Learned Additional Advocate General, on instructions, apprised this Court that till date resignation has not been received in the Office of Secretary (Health) to the Government of Himachal Pradesh. However, Mr. Vishwa Bhushan, learned counsel representing the petitioner has made available communication dated 01.04.2025, addressed to the Secretary(Health) to the Government of Himachal Pradesh, perusal whereof reveals that resignation tendered by the petitioner through proper channel has been forwarded to the Office of Secretary (Health) to the Government of Himachal Pradesh. 5. Having heard learned counsel representing the parties and perused material available on record, this Court finds that though petitioner herein had completed her MBBS as well as MD from Himachal Pradesh University, but there is nothing on record to suggest that surety bond/undertaking, if any, was given by the petitioner to serve the State of Himachal Pradesh for specified period. Otherwise also, it is apparent from 4 the pleadings that petitioner after having completed her MD from Himachal Pradesh University was appointed as Assistant Professor at Puducherry Institute of Medical Sciences. Had she furnished any bond to serve State of Himachal Pradesh after her having completed MD from Himachal Pradesh University, there was no occasion, if any, for the respondent-State to permit petitioner to join services at Puducherry Institute of Medical Sciences. 6. True, it is that from 2018 till today petitioner had been rendering services as faculty member in different colleges controlled and owned by the State of Himachal Pradesh, but there is nothing in the reply filed by the respondents to suggest that petitioner, while joining the post of Assistant Professor at IGMC, Shimla, had undertaken to work in the college concerned for specific period. Otherwise also, reason given by the respondents for non-issuance of ‘NOC’ is wholly untenable. Shortage of staff, if any, in college cannot be a ground to defeat the rightful claim of the petitioner. Petitioner being post graduate in the subject of Pathology has every right to make progress and advancement in her professional career. Since on account of her selection at AIIMS, Bilaspur, she besides getting opportunity to work in premier institution would also get higher salary. To meet short fall, if any, of faculty, respondent-State has many options. Post to be vacated by the petitioner can be filled up by way of direct recruitment on contract or even by promotion in terms of R&P Rules. 7. In similar facts and circumstances, Division Bench of this Court in LPA No. 450 of 2024 titled Ajay Kumar Chauhan v. State of 5 Himachal Pradesh, rejected the plea of shortage of staff and directed the respondents to accept the resignation forthwith. It would be apt to take note of following paras : “8. On 17.12.2024, Co-ordinate Division Bench had observed as under:- “The resignation tendered by the appellant has been rejected by the State Government on the ground that there is an acute shortage of Medical Officers (Specialists) in the State. However, we find that the same by itself cannot be a reason enough which can bind an unwilling employee to serve the State. Therefore, the respondent-State to explain its stand on the next date of hearing.” 9. Thereafter, the applicant/appellant has filed this application on 26.12.2024 with the submission that his resignation be accepted as a unconditional resignation, as he is unwilling to serve with the present employer as he has been offered appointment in AIIMS Bilaspur and he wants to excel his career in future. 10. In view of this application, learned Additional Advocate General was directed to have instructions in this regard. 11. Today, learned Additional Advocate General has expressed his inability to have instructions because of closure of offices on account of death of Ex-Prime Minister Dr. Manmohan Singh. 12. Learned Counsel for appellant has submitted that yesterday offices were open and delay in adjudication of matter would hamper his future causing irreparable loss to him as AIIMS Authority may withdraw the offer of appointment. 13. In the aforesaid facts and circumstances, this application is taken for consideration and considering the averments made in application and the submissions made on behalf of parties, the applicant/appellant is permitted and directed to 6 submit his unconditional resignation to the Principal Secretary (Health) to the Government of Himachal Pradesh, on or before 30.12.2024 and in such eventuality, such resignation shall be accepted by the concerned Authority on the very same day, subject to final outcome of present appeal and thereafter, applicant/appellant shall be at liberty to join in AIIMS Bilaspur or wherever he intends to join.” 11. In the aforesaid Order, Hon’ble Division Bench has categorically held that in case an employee is not willing to serve the department, he cannot be forced to do so. 12. Yet in another case, Hon’ble Division Bench of this Court vide order dated 9.1.2025, in LPA No. 25 of 2025, titled Dr. Trilok Chand v. Union of India and Anr., has deprecated the action of the respondents in denying NOC to the petitioner therein, who wanted to apply for post of Assistant Professor ENT in AIIMS Bilaspur. In the aforesaid case, Division Bench of this Court categorically ruled that shortfall of vacancy cannot be a valid ground for the State to deny NOC.” 8. Recently this Court in similar facts and circumstances passed judgment dated 27.03.2025 passed in CWP No.4319 of 2025, titled as Deepanshu Dhiman vs. State of Himachal Pradesh, directed the respondents to accept the resignation submitted by the petitioner, enabling her to join at PGI, Chandigarh. Since petitioner herein after being allowed to participate in the selection process as a provisional candidate has cleared the examination, this Court sees no occasion to accept the defence put forth by the respondent-State for denying the NOC for the reasons, as detailed hereinabove. 7 9. Though, at this stage, Mr. Rajan Kahol, learned Additional Advocate General attempted to argue that the case of the petitioner cannot be equated with the case of Deepanshu Dhiman because in that case petitioner had submitted her resignation, which was not being considered on account of paucity of staff, whereas in the instant case, petitioner though was granted provisional ‘NOC’, but her prayer for resignation, if any, is yet to be considered. He further submitted that bare perusal of petition nowhere suggests that petitioner had made specific prayer to accept her resignation. True, it is that in the petition at hand, petitioner has not prayed for acceptance of her resignation on account of her selection at AIIMS, Bilaspur, but since it is not in dispute that petitioner now stands selected against the post of Associate Professor in the Department of Pathology at AIIMS, Bilaspur, coupled with the fact that sole reason for not granting ‘NOC’ is/ was paucity of staff, which defence has been already negated by Division Bench of this Court in LPA No.25 of 2025 titled as Dr. Trilok hand vs. Union of India and another as well as order dated 27.12.2024 passed by Principal Division Bench of this Court in LPA No.450 of 2024 titled as Ajay Kumar Chauhan vs. State of Himachal Pradesh and others. this Court with a view to do substantial justice and to avoid further litigation can always mould the reliefs. Since this Court has already deprecated action of the 8 respondents in denying the ‘NOC’, enabling petitioner to join at AIIMS, Bilaspur, no fruitful purpose would be served, while leaving the question of acceptance of resignation submitted by the petitioner open, rather afore question if not decided at this stage would unnecessarily burden petitioner to file another petition, which otherwise for the reasons elaborated hereinabove shall succeed in all probabilities. 10. Consequently, in view of the above, this Court finds merit in the present petition and accordingly same is allowed. The provisional ‘NOC’ issued to the petitioner in terms of order dated 19.02.2025 shall be deemed to be ‘NOC’ for all intents and purposes. Similarly, resignation dated 1.4.2025 submitted by the petitioner shall be deemed to have been accepted. Respondents are directed to relieve the petitioner immediately. Petitioner shall be entitled to all service benefits arising out of her service with the respondents in accordance with law. In the aforesaid terms, present petition is disposed of alongwith pending applications, if any. 11. Registry to list the case for compliance on 7.4.2025. (Sandeep Sharma), Judge April 02,2025 (shankar)