Allahabad High Court
Dr. Umesh Chandra Pandey vs State Of U.P. And 3 Others on 13 November, 2013
Bench: Rajes Kumar, Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved.
Civil Misc. Writ Petition N0. 57390 of 2013
Dr. Umesh Chandra Pandey...........................Petitioner.
Vs.
State of U.P. and others...................................Respondents.
Hon'ble Rajes Kumar, J.
Hon'ble M.C. Tripathi, J.
(Delivered by Hon. Rajes Kumar, J.)
Heard Sri Pradeep Kumar, learned counsel for the petitioner, Sri Pankaj Rai, learned Additional Chief Standing Counsel, Sri Y.K. Yadav, learned Standing Counsel and Smt. Kamla Singh, learned counsel appearing on behalf of respondent nos. 1, 2 and 3.
The brief facts giving rise to the present writ petition are that the petitioner has been appointed on 11.2.1983 as a Medical Officer in Provincial Services (PMSH) cadre after the selection by the U.P. Public Service Commission. The service of the petitioner is governed by the U.P. Medical and Health Services Rules, 2004 which has been amended by the U.P. Medical and Health Services (Sixth Amendment) Rules, 2011. By the Notification dated 13.9.2009, issued by the State Government, the petitioner has been placed from level III to level IV. The petitioner has been posted at different places as the Medical Officer. At present, he is posted as Officiating Director and Chief Superintendent in OPEC Hospital, Kaili, District Basti.
It is alleged that the said post is under the control of State Government and the Chief Medical Officer is the supervisory authority of this hospital also. In the seniority list, published in the month of May, 2011, the petitioner was placed at serial no. 4903. The respondent no. 4, Dr. Jai Prakash Singh, was placed at serial no. 6638 and he is much junior to the petitioner. By the order dated 4.10.2013, he has been posted as Chief Medical Officer, Basti.
It may be mentioned here that by order dated 21.5.2012, one Dr. Surya Prakash Dohre was appointed as the Chief Medical Officer, Basti, who was junior to the petitioner, and was at serial no. 5640 in the seniority list. The petitioner filed representation claiming that he is senior to Dr. Surya Prakash Dohre, therefore, he should be appointed as the Chief Medical Officer. When no order has been passed on the representation dated 13.7.2012, the petitioner preferred Civil Misc. Writ Petition No. 55045 of 2012. The said writ petition has been disposed of vide order dated 17.10.2012 asking the respondent no. 1 to dispose of the representation within a time bound period. When the representation has not been decided in pursuance of the direction given by this Court, the petitioner filed Contempt Application no. 25 of 2013 in which notice was issued on 4.1.2013. The representation of the petitioner has been decided vide order dated 16.1.2013 and the claim of the petitioner for appointment as the Chief Medical Officer, Basti, being the senior-most PMS Doctor, has been rejected.
Aggrieved by the order dated 16.1.2013, the petitioner filed Civil Misc. Writ Petition No. 6509 of 2013. The said writ petition has been finally decided vide judgment and order dated 26.2.2013 and the matter has been remitted back to the respondent no. 1 for taking fresh decision. When no decision has been taken in pursuance of the order of this Court, the petitioner again filed Civil Misc. Contempt Application no. 3670 of 2013. Considering the facts and circumstances, the Contempt Court granted one more opportunity to respondent no. 1 to comply with the order passed by the Division Bench in Civil Misc. Writ Petition No. 6509 of 2013. The respondent no. 1 again rejected the representation of the petitioner vide order dated 19.9.2013, which is impugned in the present writ petition.
On 11.10.2013, the respondent was directed to file counter affidavit. Counter affidavit has been filed in reply to which rejoinder affidavit has also been filed.
With the consent of learned counsel for both the parties, the writ petition is being disposed of finally at the stage of admission.
Learned counsel for the petitioner submitted that the petitioner is a level IV Doctor and he is much senior to respondent no. 4. The claim of the petitioner is being denied the post of Chief Medical Officer on the ground that he is in a different establishment, namely, in OPEC Hospital, Kaili, Basti where he is the senior-most and is not under any junior Doctor and Dr. Jai Prakash Singh is in a different Administrative establishment and according to the respondent, the petitioner being posted in a different establishment, it cannot be said that the petitioner is under some junior Doctor. He submitted that the plea of the respondent is wholly baseless. There is only one cadre i.e. Provincial Services (PMS) cadre. Only one seniority list of all the Doctors are being prepared. The hospital establishment as well as the Administrative establishment, both, fall under the Medical and Health Services and all the Doctors are entitled for the post of Chief Medical Officer on the basis of their seniority unless they decline to accept the said option. The Chief Medical Officer of the District is undoubtedly a most prestigious post which has the supervisory control over the hospitals being run by the Government. The denial of claim of the petitioner or any other senior Doctor for the post of Chief Medical Officer of a District, being the senior-most, is wholly arbitrary. The posting/working in two different establishments is wholly irrelevant. The senior-most doctor of the same cadre is entitled to be posted on the post of Chief Medical Officer, which is more prestigious and important. If the senior-most person is ignored to be made as the Chief Medical Officer and is placed on a different establishment and a junior is made as the Chief Medical Officer, it gives rise to an unchecked arbitrary power to the State Government/authorities to appoint any junior person as the Chief Medical Officer of their own choice on choose and pick basis ignoring the senior-most doctor and placing them in a different establishment.
Learned counsels for the respondents submitted that in pursuance of the order passed by this Court, a policy dated 14.6.2011 has been made by the State Government for the appointment of the Chief Medical Officer. Clause (3) provides that in a establishment the senior-most may not be placed under the junior. The petitioner is working in OPEC Hospital, Kaili, Basti as the Chief Medical Superintendent and is not under any of the junior Doctor, therefore, the grievance of the petitioner is not justified inasmuch as the claim of the petitioner to be made as the Chief Medical Officer has no substance.
We have considered rival submissions and perused the record.
It is not in dispute that the petitioner is a level IV (PMSH) Doctor and in the seniority list he is placed at serial no. 4903 and is eligible to become Chief Medical Officer. Respondent no. 4 Dr. Jai Prakash Singh is also a level IV Doctor and in the seniority list he is placed at serial no. 6638, therefore, the petitioner is senior to respondent no. 4.
It appears that the dispute relating to the appointment on the post of Chief Medical Officer is being raised time and again. The post of the Chief Medical Officer of a District appears to be an Administrative post of (PMS) cadre and always recognised as significant and prestigious post and therefore, there is always a fight amongst the Doctors of (PMS) cadre to become Chief Medical Officer.
One Dr. Ganga Ram, being aggrieved by his supersession and denial of the post of the Chief Medical Officer, filed Civil Misc. Writ Petition No. 72397 of 2010. On 12.1.2011, this Court passed the following order:
"A number of writ petitions are being filed in the Court, challenging the arbitrary action of the State Government to pick and choose Level-4 Medical Officers to man to post of Chief Medical Officers. Though the State Government may give the important posts in the Medical and Health Department, to Level-4 Medical Officers, the issue of discrimination becomes apparent when the junior officers are appointed on these posts. It is not the question of reporting to a junior officer but also an opportunity to serve on important posts on the basis of seniority.
The amendment by the Government order dated 10th February, 2007 in the Government Order dated 20th June, 2005, to the effect of deleting the words that under Clause 2, only senior most officers of the 1st class will be appointed as Chief Medical Officer, does not make any difference to the claim of the senior officers to man important posts. No reason has been given in the Government Order dated 20th June, 2005 to revise the policy. The word 'asangat' (irrelevant) is not a reason sufficient enough to change a decision taken to treat seniority as a guiding factor for appointments on these posts.
The Government may deny opportunity to the senior most officers in the district, on any ground such as pendency of disciplinary enquiry or any other pressing administrative ground. In ordinary course however the seniority must be adhered to in appointments on such posts.
We find that a Division Bench sitting at Lucknow in writ petition No.1762 of 2010 (SB) (Dr. Kripa Ram Verma Vs. State of U.P.) has also passed an order on the same lines.
An interim mandamus is issued directing the respondents, to post only senior most Medical Officers in the District in Level-4, on the post of Chief Medical Officer and Chief Medical Officer, Family Welfare. The rule of seniority will be strictly adhered to in making such appointments. Until further orders, the petitioner will be appointed and allowed to discharge duties as Chief Medical Officer, Family Welfare, Kushinagar."
It appears that raising the similar dispute, Dr. Lallan Prasad filed a Civil Misc. Writ Petition No. 42842 of 2009. The said writ petition has been disposed of vide order dated 13.5.2011. On the consideration of the entire facts and circumstances, this Court made the following observations:
"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."
It appears that in pursuance of the orders passed by this Court, the State Government has issued following directions dated 14.6.2011, which are reproduced below:
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Clause (1) provides that the Doctors of the Uttar Pradesh Medical and Health Services Cadre-IV (Joint Director Grade) shall be eligible for the post of Chief Medical Officer, Chief Medical Superintendent (Male), Chief Medical Officer (Female) and District Tuberculosis Officer. Clause (2) provides that criterion for posting shall be seniority, suitability and annual confidential remarks. Clause (3) provides that while making the posting it is to be ensured that in the posting in an establishment, any senior Doctor may not be posted under any junior Doctor. It also provides that for the implementation of the policy, option may be asked for from level IV Doctor for the Administrative post.
We are of the view that the plea of the respondent that since the petitioner is posted in a different establishment and he is not under the control of any junior officer in the said establishment, the petitioner can not raise any grievance and according to learned counsel for the respondents, the post of Chief Medical Officer is a different establishment and, therefore, even the junior person can be appointed as the Chief Medical Officer, cannot be accepted. As per the policy decision, referred herein-above, all level IV Doctors are eligible for the post of Chief Medical Officers and Chief Medical Superintendents. The petitioner being the level IV Doctor is eligible for the post of Chief Medical Officer. The post of Chief Medical Officer appears to be Administrative post and is being recognised as most prestigious and significant. It also appears that for administrative reasons, the Chief Medical Officer has the supervisory control over the Chief Medical Superintendent of the hospital. If the petitioner is eligible for the post of Chief Medical Officer, he is also entitled to be posted as Chief Medical Officer and there is no reason to deny his right. Clause (2) of the policy also states that the option should be asked for from the Doctors for the posting on Administrative posts. This shows that from the senior Doctors, the option for the post of Chief Medical Officer should be asked and in case if they decline only then the next junior to the said Doctor may be considered for the post of Chief Medical Officer. Any other view may lead to the arbitrary situation wherein the senior-most Doctors may be posted in a hospital and may not get opportunity to become a Chief Medical Officer if they are not influential and in good books of the senior officials of the State Government and may be sidelined. This may lead to arbitrary exercise of power, which cannot be accepted.
We have perused the policy letter dated 14.6.2011. In our view, there is nothing in the policy which provides that junior doctor can be posted as Chief Medical Officer although the senior doctor of level IV is available in the same district on this ground that he is posted in different establishment.
The stand of the respondent that junior doctor of Level IV can be posted as Chief Medical Officer on the ground that senior doctor is posted in different establishment, is wholly unreasonable, arbitrary and hit by Article 14 of the Constitution of India and even contrary to the spirit of policy referred herein above.
We do not find any unreasonableness in the policy letter dated 14.06.2011, referred herein above. It intend to provide equal opportunity to the PMSH doctor of Level IV to become Chief Medical Officer and for this reason, provision for seeking option for administrative post, has been made, but it appears that the implementation of such policy is not being made in true spirit, which is causing great resentment amongst the senior doctors and leads litigation. It appears that on choose and pick basis, PMSH doctor of Level IV are being appointed Chief Medical Officer, denying the rightful claim of others, which is wholly unjustified and can not be permitted.
Policy should be such where there should not be any possibility of arbitrariness and should be fair and transparent giving equal opportunity to everyone. The policy which does not give equal opportunity to every individual is arbitrary and in violation of Article 14 of the Constitution of India.
The Rules for selection/appointment has to be applied uniformly and strictly and none from the eligible group can be eliminated on any criteria other than those which are provided in the Rules. If there is a criteria laid down for selection/appointment, the administration has to confine to the same, and it cannot impose an additional criterion over and above whatever has been laid down. It will no longer remain judicial exercise of discretion, but will result into discrimination. It will mean treating similarly situated employees dissimilarly and denying equal opportunity to some of them in the matter of public employment on the basis of a criterion which is not laid down resulting into violation of Articles 14 and 16 (1) of the Constitution of India.
We are of the view that all the doctors have a right to become Chief Medical Officer on the basis of their seniority and suitability if there is nothing adverse against them.
We are further of the view that every doctor of Level IV is entitled to get opportunity to become Chief Medical Officer on the basis of their seniority and suitability and their claim may not be denied arbitrarily on pick and choose policy.
On the facts and circumstances, we are of the view that policy dated 14.6.2011 needs little modification/clarification to make it more fair and transparent and to be sound by the vice of Article 14 of the Constitution of India.
In view of the above, we hold that at the time of annual transfer and posting, the option should be sought for the post of Chief Medical Officer and they may be posted as Chief Medical Officer having regard to the seniority and suitability and in case if such senior Doctor declines then the next person may be considered for the said post.
Accordingly, we direct that :
a) At the time of annual transfer and posting, the option should be taken from all the eligible doctors for the post of Chief Medical Officer and for the post of Chief Medical Superintendent and these posting should be made on the basis of their option having regard to their seniority and suitability and in case, if senior doctor declines then the next person may be considered for said posting. The posting should be made strictly in accordance to the seniority and suitability. For selection and posting, a high power committee should be formed. In case, if any doctor is found unsuitable or unfit, reason in this regard may be recorded.
b) In a situation of exigencies, if mid-session transfer or posting is required to be made, the same should also be made having regard to the seniority and suitability and on the basis of option.
c) A uniform, transparent procedure will be adopted in transfer and posting to over-rule the possibility of choose and pick and discrimination.
d) Doctors' primary duty is to perform the job of medical profession, namely to treat the patients as a physician or surgeon. Therefore, whatever post he/she occupy they can not be kept away from such job. Any other arrangement amounts to non-utilizing their skill of their profession and killing their skill. Therefore, whatever post they may occupy, they are bound to perform their professional medical duty.
The petitioner is fighting for the post of Chief Medical Officer from the beginning. His claim is being arbitrarily denied. Undoubtedly, the petitioner is senior to respondent no. 4, who is holding the post of Chief Medical Officer and there is nothing adverse against him. Therefore, petitioner is entitled to be posted as Chief Medical Officer. Necessary steps may be taken in this regard forthwith.
With the aforesaid direction, the writ petition stands disposed of. Respondent no. 2 is directed to follow the aforesaid direction and do the needful in this regard forthwith.
A copy of this order be provided to the learned Additional Chief Standing Counsel for information and necessary action to respondent no. 1.
Dt. 13th November, 2013
OP
