Dr. Lallan Prasad vs State Of U.P. & Others
2011 Latest Caselaw 1663 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

											  AFR
 
Court No.3
 

 
Civil Misc. Writ Petition No. 42842 of 2009
 
	
 
Dr. Lallan Prasad					.......			Petitioner
 
							Versus	
 
State of U.P. & others				.......			Respondents

Present:

(Hon'ble Mr. Justice Amitava Lala and Hon'ble Mr. Justice Shishir Kumar)

Appearance:

Counsel for the petitioner   		:	Mr. Radha Kant Ojaha and 
 
							Mr. Anand Kumar Singh.
 
								
 
Counsel for the respondents		:	Mr. Zafar Naiyer, Addl. Advocate
 
							General, Mr. P.C. Singh, 
 
							Mr. R.B.Pradhan, C.S.C. And 
 
							Mr. Ravi Kant, Senior Advocate.
 

 

Amitava Lala, J.:-- Ms. Nita Chaowdhury, Principal Secretary, Medical, Health and Family Welfare, Government of U.P., Civil Secretariat, Lucknow has filed an affidavit saying that the State Government has made the policies. For all practical purposes paragraphs of the affidavit are quoted below:

"1. That the deponent is at present posted as Principal Secretary, Medical, Health and Family Welfare Department, Government of U.P. Lucknow, and as such she is fully conversant with the facts of the case deposed to below.

2. That in compliance of the order passed by the Hon'ble Allahabad High Court on 22.04.2010 in the aforesaid writ petition, the State Government has made the following policy for posting as Chief Medical Officer, Chief Medical Superintendent, Chief Medical Superintendent (Female) and District Tuberculosis Officer:

"3 (a) That those doctors belonging to the U.P. Provincial Medical and Health Service who are working in Level-4 (Joint Director Grade) shall be eligible for posting as Chief Medical Officer, Chief Medical Superintendent, Chief Medical Superintendent (Female) and District Tuberculosis Officer, These posts are of equal rank,

(b) That criterion for such posting shall be seniority, suitability and past service for which Annual Confidential Reports (A.C.R.) shall be the basis for consideration.

(c) That those doctors who have completed 58 years of age and who have never been posted on the above mentioned posts shall not be considered.

(d) That while giving effect to the posting on the abovementioned posts, it shall be ensured that the doctor being posted in the respective establishment, i.e. Office of the Chief Medical Officer, Chief Medical Superintendent, Chief Medical Superintendent (Female) and District Tuberculosis Officer is senior most in the respective establishment.

(e) That Annual Confidential Reports (A.C.R.) of all Level-4 officers shall be written by Level-5 officers.

(f) That the Hon'ble Chief Minister may relax the above policy in the public interest."

4. That regarding posting of Chief Medical Officers and Chief Medical Superintendent in every district of the State and their seniority position, it is submitted that in order to make sure that entries in the Personal Information Database of the doctors of U.P. Provincial Medical and Health Service is absolutely errorless and up-to-date, a detailed in-depth scrutiny of the same has been initiated. Under this exercise, a division-wise schedule has been prepared and each day officers from three divisions are being called alongwith district-wise details of the postings of doctors and their updated posting proforma.

5. That it is further submitted that according to this schedule, this exercise will be over by 02.05.2011. With this exercise, the position will be clear whether there is any doctor working under a junior doctor in Chief Medical Officer, Chief Medical Superintendent, Chief Medical Superintendent (Female) and District Tuberculosis Officer establishment with certainty.

6. That it is also submitted that after the position becomes clear following the exercise as mentioned above, the Department will undertake further needful steps in accordance with the policy made by the government relating to the posting of Chief Medical Officers, Chief Medical Superintendents, Chief Medical Superintendents (Female) and District Tuberculosis Officers and, consequently, any aberration with regard to the seniority will be rectified."

Mr. Ravi Kant, learned Senior Counsel appearing for the State has cited a judgment reported in (2011) 4 SCC 288 (State Of Uttar Pradesh And Others Vs. Jasvir Singh And Others) for two reasons:

"(a) It is a matter of concern that there is a growing trend among a few Judges of the High Court to routinely and frequently require the presence, in Court, of senior officers of the Government and local and other authorities, including officers of the level of Secretaries, for perceived non-compliance with its suggestions or to seek insignificant clarifications. The power of the High Court under Article 226 is no doubt very wide. It can issue to any person or authority or Government, directions, orders, writs for enforcement of fundamental rights or for any other purpose. The High Court has the power to summon or require the personal presence of any officer, to assist the Court to render justice or arrive at a proper decision. But there are well-settled norms and procedures for exercise of such power.

(b) Where the State has a definite policy or taken a specific stand and that has been clearly explained by way of affidavit, the Court should not attempt to impose a contrary view by way of suggestions or proposals for settlement. A Court can of course express its views and issue directions through its reasoned orders, subject to limitations in regard to interference in matters of policy. But it should not, and in fact, it cannot attempt to impose its views by asking an unwilling party to settle on the terms suggested by it."

We have surprised about the submission in terms of point no. (a) above because it was clear understanding between the parties in presence of the Court that the Principal Secretary, Medical, Health and Family Welfare, Government of U.P. will not be under threat of contempt but as per desire of the Court for the purposes of real assistance to the Advocate General/Additional Advocate General/Senior Counsel representing the case of the State and for solution of the matter in the Court. Against this background, reference to the aforesaid judgment of the Supreme Court as cited by Mr. Ravi Kant is uncalled for. When the Court was displeased, he has withdrawn his submission in terms of point no.(a) above.

So far as the second point, as aforesaid is concerned, we require little clarification.

Learned Counsel appearing for the petitioner has cited a judgment reported in (1998) 2 SCC 609 (United Bank of India Vs. Meenakshi Sundaram and Others) differentiating transfer and posting. He further cited a judgment reported in (1990) 3 SCC 590 (State Of Andhra Pradesh Vs. Dr. N.Ramachandra Rao And Others), paragraph 17 of which is quoted hereunder:

"17. Furthermore, Rule 2 does not expressly exclude the service in Class II cadre for preparing panel for consideration for promotion to posts with which we are concerned. We also consider that it would be unreasonable and unjust to exclude the service and overlook the vertical seniority in the substantive cadre to which everyone was selected by the Public Service Commission. In medical profession there are specialities and specialities, but it is generally accepted that they are not of equal importance or utility. However, the promotions are allowed on the basis of the respective specialities and the availability of promotional vacancies in such specialities. A junior with relatively less important speciality may be fortunate enough to get quick promotion than his senior with a different speciality. We are of the opinion that the juniors who get accelerated promotion on account of fortuitous circumstances depending upon their speciality and availability of vacancies in such speciality should not be allowed to march over their seniors for appointment to administrative posts. Any advantage gained by juniors on such fortuitous circumstances of having some speciality and promotion should not impair the rights of their seniors for promotion to posts where speciality or teaching experience is not called for. The seniority determined in order of speciality should not therefore be the basis for promotion to adminstrative posts. Any rule providing for the contrary may be vulnerable to attack on the ground of arbitrariness."

By showing such judgments the learned Counsel appearing for the petitioner has stated that while making posting of Chief Medical Officer and Chief Medical Superintendent being the administrative in nature, will be filled up by State Level Seniority amongst level IV Doctors. There can not be restriction with regard to 58 years age where will be the criteria for judging competence of a person for being appointed as Chief Medical Officer and Chief Medical Superintendent. Moreover, interference of the Chief Minister with regard to relaxation of policy will be made very seldom in exceptional circumstances. Futhermore, Annual Confidental Reports (A.C.R.) of the level IV Doctors/Officers should be written and maintained by level V Doctors/Officers. Utmost strictness will be followed in respect of due compliance of such conditions.

We think the aforesaid suggestions, as given by the petitioner, are valuable to avoid state level seniority, unpleasantness and humiliation in their respective services as Doctor in the government services and, therefore, within the prescribed limitation under Jasvir Singh (Supra) we direct the State to take appropriate measure in connectioin thereto before giving effective implementation of the policy otherwise such policy will be open for criticism as arbitrary, malafide and colourable exercise of power when the Court will be flooded with the litigations and State will be responsible for the same.

With the above observations the writ petition is disposed of, however, without imposing any cost.

It is open to the petitioner to make appropriate representation for the purpose of redressal of his grievance before the authority concerned in case of seniority.

(Justice Amitava Lala)

I agree.

(Justice Shishir Kumar)

Dt. 13.05.2011

MAA/-