Deepika Vs the State of Hp and Others

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2025:HHC:43033

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No. 15873 of 2025 alongwith CWP No. 15993 of 2025

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Reserved on 04.12.2025.

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Date of decision: 11.12.2025.

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1. CWP No. 15873 of 2025 Shailja Sharma and Another ...Petitioners. Versus State of H.P. & Others. …Respondents. 2. CWP No. 15993 of 2025 Deepika ...Petitioner. Versus State of H.P. & Others. …Respondents.

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Coram

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Hon’ble Mr. Justice Vivek Singh Thakur, Judge. Hon’ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting?¹ Yes For the Petitioner(s). Mr. Vishwa Bhushan, Mr. Devender K. Sharma and Ms. Anuja Mehta, Advocates. For the Respondents : Mr. Ramakant Sharma, Additional Advocate General, for respondents No. 1 and 2. Mr. Sandeep K. Pandey, Advocate, for respondent No. 3.

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1 Whether the reporters of the local papers may be allowed to see the judgment?

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CWP No. 15873 of 2025 & connected matter

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Vivek Singh Thakur, Judge (Oral)

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Issue involved in both these petitions is identical in nature, which is to be adjudicated on the basis of common question of facts and law and, therefore, these are being decided by this common judgment.

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At the very outset, learned counsel for the petitioners submit that for the purpose of adjudication of their claims in present petitions, they are not pressing first prayer made in Clause (1) of the prayer for declaring the Himachal Pradesh Recruitment and Conditions of Service of Government Employees Act, 2024 (in short ‘ 2024 Act ’), ultra vires of the Constitution of India, but by reserving their right to assail the validity of the said Act in separate proceedings, if required so.

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It is undisputed that petitioners were selected and recruited by the respondent/State in Health Department as Staff Nurses through a process undertaken by Himachal Pradesh Service Selection Board, Hamirpur, in the year 2016 and consequently, in December 2016, they were appointed in various institutions, but on contract basis.

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Vide order dated 29.06.2020, services of petitioners were regularized, as evident from Annexure P-2 in both petitions.

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In 2025, respondent No. 3, Atal Medical & Research University, Himachal Pradesh issued a prospectus for admission to M.Sc Nursing Entrance for academic session 2025-2026 for female candidates

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CWP No. 15873 of 2025 & connected matter

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inviting applications for admission to two years M.Sc Nursing Entrance Test, 2025 (Annexure P-3).

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Time for submission of online application form with final

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transaction of fee was from 24.05.2025 to 30.05.2025.

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The seats in M.Sc. Nursing course were divided into two categories, i.e., in-service quota seats and direct quota seats.

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For in-service quota seats, eligibility and other relevant conditions were as under:-

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(Chapter 2)

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ELIGIBILITY, EDUCATIONAL QUALIFICATIONS AND OTHER CONDITIONS.

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2.1... Admission to M.Sc. Nursing Degree course shall be made on the basis of merit of the Entrance Test to be conducted by the AMRU for which female candidates are eligible subject to fulfillment of the following conditions:

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2.1.1. The candidates should be registered as registered Nurse/Midwife/(RN/RM) B.Sc/Post Basic B.Sc Nursing with H.P State Nurses registration council Shimla/any State Nursing Registration council at the time of admission.

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2.1.2. The candidates should be B.Sc. Nursing/Post Basic B.Sc. Nursing /B.Sc Hons. Nursing trained from the recognized Institutions not less than 55% aggregate marks.

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2.1.3. Minimum one year of work experience prior or after Post Basic B.Sc. Nursing and after B.Sc. Nursing from the date of registration. A certificate of work experience will be required to be uploaded at the time of application for M.Sc. Nursing course.

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CWP No. 15873 of 2025 & connected matter

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2.2... For In-Service Quota Seats:

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2.2.1 In-service quota seats are to be filled up by inservice regular appointed Nursing Cadre candidates of Govt. of H.P. subject to fulfillment of the condition as laid down under Chapter 11 of the prospectus. However, adhoc & contractual appointees including appointees of Rogi Kalyan Samities will also be considered under this quota subject to fulfillment of the condition as laid down under chapter 11 of the prospectus. The candidates must have completed minimum 5 years service on the last date of submission of application form.

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2.2.2 As per INC notification no 11 of 2023 f. No 1-6/LT/2023INC dated 21 August 2023 there is no maximum/upper age limit for the admission to M.SC. (N) programmers.

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2.3.3 The service certificate cum-NOC as per Annexure-6 of the prospectus is required to be submitted by the candidate with print out of online application at the time of admission in the allotted college.

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Condition of bond, leave etc. were contained in Chapter 11 of the prospectus, relevant clause thereof dealing with study leave or leave of kind due reads as under:-

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Chapter 11 CONDITION OF BOND, LEAVE ETC.

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11.1.... The regular in-service staff Nurse/Sister tuitor/PNO etc. working in the State will be eligible for admission to M.Sc (Nursing) Degree Course after completion of minimum five years services. Further all the Govt. regularly appointed staff nurses/Sister tuitors/PNO(s) fulfilling the minimum required five year services period will be granted study leave or leave of kind due as the

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CWP No. 15873 of 2025 & connected matter

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case may be during their period of undergoing course and will be paid their pay and allowances.

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11.2.... All the staff Nurses appointed on contract basis (Govt. or RKS) fulfilling the required five years of services will be treated as in-service candidates. However, they will not be paid any salary during the entire period of undergoing course and will only be allowed leave as per their appointment conditions as the case may be and this period of leave will not be counted for any purpose of regularization of service and other benefits for which they are eligible or as per the instructions issued by the Govt. from time to time.

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11.3.... In case Regular, adhoc or contract staff Nurses have not completed the minimum five years of service in the State on the last date of submission of application from such candidate will be treated as Direct candidates and will not be entitled for any kind of leave as well as pay and allowances during the course of period.

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11.4.... The regularly appointed staff Nurses as well as contractual and RKS appointees will execute bond of Rs. 5,00,000 (Five lacs) for completion of minimum 5 years compulsory service after completion of M.Sc. (Nursing) degree course.

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Petitioners applied for admission against in-service quota

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seats and they appeared in the entrance test conducted by the University and in the Final Overall Merit List of M.Sc. Nursing Counselling 2025, released on 13.08.2025, vide Annexure P-4, the petitioners were declared qualified at Serial Nos. 55, 57 and 118 of Annexure P-4.

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As per terms of the prospectus, Service Certificate-cumNOC, as per Annexure P-6 of the prospectus, was required to be

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CWP No. 15873 of 2025 & connected matter

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submitted by the petitioners at the time of admission in the allotted college.

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12 Accordingly, after finding place in the selected in-service candidates, petitioners applied for requisite certificate by filing applications along with request for granting study leave to pursue the M.Sc Nursing course.

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The representations (P-5 Colly) of petitioners Shailja Sharma and Prem Lata (Petitioners in CWP No. 15873 of 2025) were rejected by the respondent/State and it was communicated to the Director vide letter dated 03.09.2025 (Annexure P-7).

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With respect to the application preferred by Deepika, no decision was taken till filing of the petition and representation was kept in abeyance.

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In response to the petition, the ground for rejection of application of the petitioners in CWP No. 15873 of 2025 has been reiterated for not granting/issuing requisite certificate in favour of Deepika, petitioner in CWP No. 15993 of 2025.

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It is undisputed that in similar circumstances, No Objection Certificate was not granted to certain Ayurvedic Doctors serving with the respondent/State, who had approached the Court by filing various petitions including CWPOA No. 799 of 2020. The same were decided on

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CWP No. 15873 of 2025 & connected matter

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27.07.2023, directing the respondent/State to grant study leave to the petitioners therein by counting their contract service for the purpose of counting of period of service for the purpose of grant of study leave with reference to Rule 50(5)(i) of CCS (Leave) Rules. The said judgment has been implemented by the respondents.

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From rejection communicated vide letter dated 03.09.2025 (Annexure P-7), it is apparent that issuance of requisite No Objection Certificate has been denied on two grounds.

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a. That petitioners have not completed the regular tenure of five years regular service, which is mandatory eligibility criterion for in service candidates as per Prospectus of the M.Sc Nursing course.

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b. That sub-rule 5(i) of Rule 50 of CCS Leave Rules, 1972, clearly stipulates that Study Leave may be granted to a Government Servant “who has satisfactorily completed the period of probation and has rendered not less than five years of regular continuous service, including the period of probation, under the Government”.

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Eligibility prescribed for in-service quota seats in clause 2.2.1 is that in service quota, seats are to be filled by in-service regular

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appointed Nursing Cadre candidates of Government of H.P., subject to fulfillment of condition as laid down under Chapter 11 of the Prospectus with further clarification that adhoc and contractual appointees including

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CWP No. 15873 of 2025 & connected matter

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appointees of Rogi Kalyan Samities will also be considered under this quota, subject to fulfillment of condition as laid down under Chapter 11 of the Prospectus. It further requires that candidate must have completed

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‘minimum five years service’ on the last date of submission of the application form.

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From the above clause, it is apparent that not only regular appointed candidates, but adhoc and contractual appointees are also entitled for admission against in-service seats and the requirement is minimum five years’ service. The requirement is not minimum five years ‘regular service’, but it is only ‘five years service’.

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In Chapter 11 also, which has been reproduced supra, in clause 11.1, it has been reiterated that regular in-service staff Nurse working in State will be eligible for admission to M.Sc (Nursing) Degree course after completion of ‘minimum five years service’. This clause again does not require minimum five year ‘regular service’. Further, in Chapter 11 of the prospectus, for Study Leave also, the same minimum required ‘five years service’ period is eligibility condition. Again there is no requirement of minimum ‘regular five year service’, rather it has been stated that the candidate fulfilling minimum five years required service period will be granted Study Leave.

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CWP No. 15873 of 2025 & connected matter

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Clauses 11.2 and 11.3 indicate that even Staff Nurses appointed on contract basis (Government or RKS) fulfilling required five years of services will be treated as in-service candidates, but they shall not be paid any salary and shall only be allowed leave, but the said leave period shall not be counted for any purpose of regularization of service and other benefits, for which they will be eligible or as per instructions issued by the Government from time to time.

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It is apparent from the above that not only regularly appointed Staff Nurses, but Staff Nurses appointed on contract basis are also eligible for M.Sc Nursing course however, for entitlement of Study Leave, the candidate must be appointed regular Staff Nurse, but for calculating minimum five years service, nowhere it has been provided that this five years service should be regular service. Had it been so, then it must have been reflected in the condition 2.2.1 as well as 11.1 that minimum five years service should be five years regular service.

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When it has been specifically stated in these clauses that inservice quota, seats are to be filled up by in-service regular appointed nursing cadre, then in case intention of legislature would have been to extend benefit only to candidate with regular service, the requirement of five years ‘regular service’ should have also been stated specifically. Use of ‘regular’ word with the eligibility condition, but absence thereof with the

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CWP No. 15873 of 2025 & connected matter

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five years requisite service clearly indicates that at the time of submitting application, the candidate must be regularly appointed, but for counting of minimum five years service, there is no impediment not to count contract service rendered by such candidate for calculating the requisite minimum five years services. Therefore, rejection of the application for issuing No Objection Certificate to avail Study Leave to pursue the nursing courses is misconceived and is in conflict with the terms and conditions notified in the prospectus.

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Entitlement for Study Leave is governed by Clause 11.1. It has been specifically provided in Clause 11.2 that Study Leave with pay will not be available to in-service candidates, who are not regular, but are serving on contract basis. They have been treated as in-service candidates. They have been permitted to go on leave for completion of course, but without any monetary as well as other service benefits including counting of leave period towards their service, whereas it is not so for candidates not in Regular Service.

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Conjoint reading of 2.2.1, 11.1, 11.2 and 11.3 clearly indicates that a person who is regularly appointed but has completed minimum requisite five years services shall be entitled for study leave or leave of kind due during their period of undergoing course and will be paid their pay and allowances.

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CWP No. 15873 of 2025 & connected matter

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Undisputedly, petitioners were appointed through prescribed agency, i.e., Himachal Pradesh Service Selection Board, Hamirpur, H.P. after completing the process in accordance with R & P Rules, applicable to the post of staff nurse. It is well settled in the pronouncement of the Apex Court in Direct Recruit Class II Engineering Officers’ Association vs. State of Maharashtra and Others reported in (1990) 2

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SCC 715 that such candidates after regularization of service are entitled for all benefits like regularly appointed candidate from the initial date of appointment. Following the aforesaid verdict of the Hon’ble Supreme Court, various judgments have been passed on the same line by this High Court, which have also been affirmed by the Apex Court.

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Plea of learned Additional Advocate General that for not pressing first Prayer, whereby challenge to validity of 2024 Act was laid, the petitioners are not entitled for counting of their contractual service for the purpose of determining their eligibility and benefit of study leave for completing M.Sc. Nursing 2-Years course, is misconceived for the discussion hereinafter.

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In this context, Articles 141 and 144 of the Constitution are relevant to be referred, which read as under:-

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141. Law declared by Supreme Court to be binding on all courts. - The law declared by the Supreme

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CWP No. 15873 of 2025 & connected matter

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Court shall be binding on all courts within the territory of India.

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142. … … … 143. … … … 144. Civil and judicial authorities to act in aid of the Supreme Court . - All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.

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Articles 141 and 144 of the Constitution of India mandates

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that everyone is bound to act in consonance with and in aid to the verdict of the Supreme Court. The judgment passed by the competent Court unless set-aside or reversed by the Court of competent jurisdiction is binding on all. It cannot be superseded or overruled by the executive instructions or even by legislation except as permissible under law.

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The Constitutional Bench of the Apex Court in Janapada Sabha, Chhindwara Etc. vs The Central Provinces Syndicate Ltd. &

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Anr. , 1970 SCC (1) 509 , has held as under:-

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“10. ………. That, in our judgment, is not open to the Legislature to do under our constitutional scheme. It is open to the Legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the Legislature to say that, a judgment of a Court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the Court.”

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CWP No. 15873 of 2025 & connected matter

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In recent judgment of the Apex Court passed on 19.11.2025

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in Writ Petition (C) No.1018 of 2021 titled as Madras Bar Association

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vs. Union of India & Anr. , it has been held as under:-

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“110. The first issue that arises for consideration is whether Parliament possesses the authority to disregard a judicial pronouncement and to enact a statute in any manner it deems appropriate. This contention goes to the core of the present debate. At its foundation lies an appeal to the doctrine of parliamentary supremacy, a principle recognised in several jurisdictions where the legislature is the supreme law-making body, unconstrained by judicial review. However, the Indian constitutional framework does not subscribe to parliamentary sovereignty, nor does it vest unqualified supremacy in the judiciary. The architecture of our Constitution is firmly rooted in the principle of constitutional supremacy.”

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Judgments in Direct Recruit’s case (supra) as well as in

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Geetika Dharmani’s case (supra) hold the field and can be relied upon

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for determining the rights of the petitioners by adjudicating present petitions, which are binding on all, being not set aside or overruled by the Competent Court.

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Therefore, ratio of judgments in Direct Recruits case, referred supra, is enforceable and binding on all including respondents. Everyone has to act in aid of the pronouncement of the Supreme Court.

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Provision of Rule 50(5)(i) of CCS Leave Rules, 1972, in context with the present case, as to be read in consonance with the pronouncement of the Supreme Court, as has also been interpreted by Co-ordinate Division Bench in judgment dated 27.07.2023, passed in

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CWP No. 15873 of 2025 & connected matter

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CWPOA No. 799 of 2020, titled Geetika Dharmani vs. State of

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Himachal Pradesh . This judgment has also been implemented by the respondents by taking a decision in consonance with the constitutional mandate contained in Articles 141 and 144 of the Constitution.

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In aforesaid backdrop, petitioners are also entitled for the same interpretation of Rules 50(5)(i) of CCS Leave Rules in the similar manner like Geetika’s case and thus are entitled for taking into consideration their contract service for calculating minimum requisite five year services required for issuance of NOC with study leave to the petitioners.

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Otherwise also, even in absence of enforceability of above referred judgments, i.e. in Direct Recruit (supra) and Geetika Dharmani (supra) , the claim of the petitioners on the basis of terms and conditions notified in the Prospectus can be adjudicated without referring the aforesaid judgments. Conjoint reading of Chapter 2 of Prospectus dealing with eligibility, educational qualifications and other conditions, especially Clause 2.2.1, with Chapter 11 of the Prospectus dealing with condition of bond, leave etc., clearly establishes that petitioners, who at the time of submitting applications were regularly appointed Staff Nurses with 5 years’ service, including their service before regularization, shall be entitled for study leave, irrespective of provisions of Rule 50(5)(i) of CCS

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CWP No. 15873 of 2025 & connected matter

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(Leave) Rules, 1972. The afore-referred Chapters of Prospectus unambiguously depict that an in-service candidate, having minimum required 5 years’ service, not required to be regular service, as indicated in above Chapters of the Prospectus, but with previous contract service, is entitled for admission to M.Sc. Nursing course as an in-service regular appointed Nursing cadre candidate with entitlement for study leave or leave of kind due, as the case may be, during his/her period of undergoing course and will also be entitled for pay and allowances for the said period. Therefore, even above referred judgments are ignored, the right of petitioners claimed in the petitions is well-established in terms of relevant clauses of Chapters 2 and 11 of the Prospectus, as there is no requirement for the benefit claimed by the petitioners of minimum 5 years’ regular service, but the only requirement is that in-service candidate must be regular appointed candidate at the time of last date of submission of application with minimum required 5 years’ service. The requirement of 5 years’ service has not been qualified that it must be regular service.

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In view of above, we are of the considered opinion that the omissions and commissions on the part of respondents resulting into denial of No Objection Certificate-cum-permission to Study Leave is not in accordance with law, but is in conflict with the settled law of the land.

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CWP No. 15873 of 2025 & connected matter

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It is also relevant to record that, as contained in clause 2.2.3, the requisite service certificate-cum-NOC was to be submitted by the candidate at the time of admission in the allotted college. After inclusion of final overall merit list, petitioners could not submit the requisite certificate at the time of admission, either in first round of counselling or second round of counselling. As per clause 9.3.4 of the Prospectus at the end of 2^nd round of Common/Centralized Counselling, for failure of non availability of eligible candidate in any quota, i.e., direct or in-service, the vacant seats are to be filled by making them available to the category of other quota, i.e., direct or in-service.

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It has been informed by the learned counsel for the respondent No. 3/University that total seats for M.Sc Nursing course in Government colleges were 55. Out of that, 33 seats were available against in-service quota candidates and 22 seats were available against direct quota. However, only 5 candidates were admitted against in-service quota and in the 2^nd round, 28 seats were available for in-service quota, but in 2^nd round only one in-service candidate was admitted and remaining service quota seats made available to direct quota candidates. However, 11 seats still remain vacant, which were made available for direct quota in mop up round, but in mop up round ,8 seats were allocated to direct candidates, but only 5 candidates got admission in mop up round

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CWP No. 15873 of 2025 & connected matter

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and three seats remained vacant and kept for in-service candidates, subject to final outcome of the petition, whereas three seats have been allocated in stray round of M.Sc Nursing to direct candidates. As such, as on date, three seats of in-service candidate are still available for admission of in-service candidates. Therefore, petitioners can be accommodated against three vacant seats available against in-service, which can be filled by in-service candidates, as admission of these three candidates shall not accede the total seats allotted to in-service candidates, i.e., 33.

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Accordingly, writ petitions are allowed and respondents are directed to grant necessary requisite NOC to grant study leave to the petitioners to pursue the M.Sc Nursing course 2025-2027 from respondent No. 3 Atal Medical & Research University, Himachal Pradesh Mandi at Ner Chowk, H.P. with all consequential benefits and respondent No. 3/University is directed to complete the formalities of admission of the petitioners within five days on approaching by the petitioners within five days from the passing of the order. It is made clear that in case competent authority fails to issue necessary No Objection Certificate to the petitioners within five days from the passing of this judgment, the petitioners shall be at liberty to approach the respondent No. 3 without such NOC, but with copy of this judgment and in such eventuality, the

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CWP No. 15873 of 2025 & connected matter

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requisite certificate shall be deemed to have been issued by the competent authority for all intents and purposes and respondent No. 3/University shall not compel the petitioners to produce such certificate at

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the time of admission. Petitions are disposed of in the aforesaid terms, so

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also the pending applications, if any.

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