Allahabad High Court
Dr. Prabha Shankar Pandey vs State Of U.P. And Others on 27 November, 2013
Bench: Rakesh Tiwari, Bharat Bhushan
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 21
Case :- WRIT - A No. - 33328 of 2004
Petitioner :- Dr. Prabha Shankar Pandey
Respondents :- State Of U.P. and Others
Counsel for Petitioner :- Sri V.K.Singh & Sri G K Singh
Counsel for Respondents :- C.S.C.
Hon'ble Rakesh Tiwari,J.
Hon'ble Bharat Bhushan,J.
( By Hon. Rakesh Tiwari,J. )
Heard learned counsel for the parties and perused the record.
BACKDROP OF THE CASE:-
The petitioner was initially appointed as temporary P.M.S. (Provincial Medical Service) Officer against a substantive vacancy on 8.10.1963 and worked on the said post continuously for more than 20 years. Thereafter, his services were regularized. However, his services were not counted while fixing his seniority. Aggrieved the petitioner along with other doctors filed writ petitions before the High Court which were disposed of on 18.11.1987 with a direction to the State Government to decide their representations. Pursuant thereto the petitioner filed his representation, which was rejected vide order dated 6.9.1988.
The aforesaid order dated 6.9.1988 was challenged in Civil Misc. Writ Petition Nos. 20408 of 1988 ( Dr. H.C. Mathur versus State of U.P. and others), Civil Misc. Writ Petition No. 1458 of 1989 ( Dr. P.L. Nigam and another versus State of U.P. and others) and Civil Misc. Writ Petition No. 6331 of 1989 (Dr. Jagdish Narain Rai versus State of U.P. and another), which were allowed vide judgment and order dated 26th April, 1991 quashing the order dated 6.9.1988. The Court directed the respondent-authorities to fix the seniority of the petitioner and other similarly situated doctors from the date of their initial appointment in the P.M.S. cadre and with all service benefits after fixing their seniority. Pursuant to the aforesaid directions, the petitioner claimed to be entitled to seniority, re-fixed from the date of initial appointment and promotion to higher post with effect from the date juniors to him in service had been promoted. He claims that he was also entitled to receive arrears of salary and other financial benefits.
It is averred in the writ petition that when the judgment and order dated 26th April, 1991 was not complied with by the respondent-authorities, the petitioner along with other aggrieved doctors filed Civil Misc. Contempt Petition No. 1172 of 1991 (Dr. Prabha Shankar Pandey versus S.D. and others). In the said contempt petition the respondent-opposite parties filed final seniority list of the applicants and also gave an undertaking that they would grant promotion and other service benefits to the petitioners within 15 days. On the aforesaid undertaking the contempt petition was disposed of by the Court vide order dated 2.2.1993. Despite the aforesaid undertaking having been given in contempt petition, the judgment and order dated 26.4.1991 was not complied with compelling the petitioner and some other similarly situated persons to file Civil Misc. Contempt Petition No. 643 of 1993 in which an order dated 16.7.1993 was passed directing the respondents to ensure compliance of the judgment and order dated 26.4.1991.
During the pendency of the contempt petition aforesaid the petitioner retired from service on 31.7.1993.
In the mean time, the State Government preferred in Special Leave to Appeal before the Apex Court against the judgment and order dated 26.4.1991, which was dismissed vide order dated 14.1.1993; that the order dated 16th July, 1993 was also challenged before the Apex Court in which an interim order was granted staying the further proceedings of Contempt Petition No. 643 of 1993 till the decision of Writ Petition No. 1323 of 1993 filed by Sri R.B. Saxena, pending before the Lucknow Bench of this Court. The aforesaid writ petition no. 1323 of 1993 was finally disposed of vide judgment and order dated 25.5.1994, therefore, the interim order of the Apex Court came to an end and the order dated 16th July, 1993 passed in Contempt Petition No. 643 of 1993 became operative.
It is also averred that the Court took serious view of the matter considering the fact that the judgment and order dated 26.4.1991 was not complied with and passed an order on 6.12.1994 directing the respondents to give notional promotion to the petitioner and other similarly situated Doctors; that instead of granting promotion to the petitioner and other similarly situated doctors the respondents filed Special Appeal nos. 58,59 & 60 of 1995 before the High Court in which an interim order was passed permitting them to issue promotion orders in favour of persons who were juniors to the petitioner.
The aforesaid special appeals were disposed of again directing the respondent-authorities to comply with the judgment and order dated 26.4.1991 within a period of 3 months. However, inspite of the aforesaid directions, the petitioner was not granted promotion and Sri K.B. Varshney and Sri S.C. Vaish who were much junior to him were promoted on the post of Director General.
In these aforesaid circumstances, petitioner again preferred Contempt Petition no. 93 of 1998 ( Dr. P.L. Nigam and others versus Sri R.S. Mathur and another). During pendency of the aforesaid contempt petition, the respondents passed an order dated 2.3.1998 granting senior pay scale to the petitioner w.e.f. 1.6.1996 and notional promotion to the post of Joint Director from 10.5.1990. However, promotion to the posts of Additional Director and thereafter to the posts of Director and Director General was rejected by them vide order dated 2nd March, 1998 stating that he was not found suitable by the Selection Committee.
Aggrieved by the aforesaid order dated 2nd March, 1998 in so far as it refuses to grant promotion to the petitioner to the posts of Additional Director, Director and Director General, has filed the instant writ petition for the following reliefs:-
a) "Issue a suitable writ order or direction in the nature of certiorari quashing the impugned order dated 2nd March, 1998 passed by the respondent no.1 (annexure-4 to this writ petition.
b) Issue a suitable writ order or direction in the nature of mandamus commanding the respondents to consider the case of the petitioner for grant of notional promotion to the posts of Additional Director, Director and Director General, Medical Health with effect from 8.10.1983, 8.10.1988 and 8.10.1989 respectively and to give him all consequential benefits thereof including the arrears of salary.
c) Issue such other and further writ, order or direction in the nature of mandamus which this Hon'ble Court may deem fit and proper under the circumstances of the instant case so that justice be done.
d) Award cost of the petition throughout to petitioner as against the respondents."
CONTENTION OF THE PARTIES:-
Learned counsel for the petitioner submits that no reason has been assigned by the respondents while passing the order dated 2.3.1998 refusing promotion to the petitioner to the posts of Additional Director, Director and Director General as to why he was found not suitable for being promoted to the said posts. It is stated that there was nothing against the petitioner in his service records on the basis whereof he could be non-suited for promotion to the aforesaid posts as the criterion for promotion to the post of Joint Director is the same which is for the posts of Additional Director, Director and Director General. The respondent-authorities had found the petitioner meritorious and suitable for being promoted as Joint Director and hence, once he having been granted promotion by the respondent-authorities on the said post they could not have rejected his candidature for promotions to the posts of Additional Director, Director and Director General respectively. However, nothing has been mentioned in the order so as to indicate the reason for which the petitioner was denied promotion.
He also submits that vide order dated 28.2.1998 (Annexure-5 to the writ petition) several Joint Directors were granted promotions to the posts of Additional Director after their retirement from service merely because persons junior to them had been promoted to the said posts earlier. It is emphasized that order in respect of the petitioner was passed two days thereafter, the order dated 28.2.98 was passed, therefore, it is not clear as to why the respondents have discriminated while considering the case of the petitioner. Persons similarly situated were granted promotion as Additional Directors from the date on which persons junior to them had been granted promotion, a similar treatment ought to have been given to the petitioner. According to the counsel, case of the petitioner was on a better footing and the cases of those Joint Directors who were granted promotion vide order dated 28.2.1998 were neither considered by any departmental promotion committee nor was there any order in their favour. Not only this even the retired persons were granted promotions simply on the ground that persons junior to them had been granted promotion.
It is also submitted that the petitioner on the basis of his position in the seniority was entitled to get following reliefs:-
"a) senior scale of pay from 8.10.1972
b) promotion to the post of Civil Surgeon from 8.10.1973
c) promotion to the post of Joint Director from 8.10.1978
d) promotion to the post of Additional Director from 8.10.1983
e) promotion to the post of Director from 8.10.1988
f) promotion to the post of Director General from 8.10.1989."
Learned counsel for the petitioner submits that the petitioner has retired from service and he would be satisfied if he be placed above to the persons junior to him who had been granted notional promotion to the posts Additional Director and Director General.
It is lastly submitted by the learned counsel for the petitioner that considering the aforesaid facts particularly that persons junior to him had been granted promotion from the said date, the respondents are not justified in denying the aforesaid benefits to the petitioner and the order dated 2.3.1998 is liable to be set aside in so far as it refuses to grant further promotion to the petitioner to the posts of Additional Director, Director and Director General.
Per contra, learned counsel for the respondents submits that
vide order dated 2.3.1998 the petitioner has already been granted senior pay scale w.e.f. 1.6.1976 as well as notional promotion in the pay scale of Joint Director w.e.f. 10.5.1990; that it is clear from the impugned order dated 2.3.1998 that the petitioner was not found suitable by the Selection Committee for being promoted to the post of Additional Director as criteria for promotion to the post of Additional Director and Director General was merit according to the provisions laid down in U.P. Medical and Health Group "A" Service Rules, 1990 as amended in 1991 as well as U.P. Government Servant (Appointment through Promotion) Rules, 1998; that as the petitioner was not found eligible for promotion to the post of Additional Director, his further claim for promotion to the post of Director and Director General is unsustainable being devoid of any merit; that Sri K.B. Varshney and Dr. S.C. Vashya were promoted to the post of Additional Director and Director General on the basis of merit amongst the candidates shown in seniority list dated 22.11.1996.
He also submits that from perusal of order dated 28.2.1998, it is clear that in order to grant notional promotion to the post of Additional Director, names of all the male officers of Joint Director level who were senior to Sri Sumatisheel Sharma (at sl. no. 79 in the seniority list) were considered but only 20 such officers were found suitable on the basis of merit for notional promotion to the post of Additional Director and as such there was a greater probability that petitioner might not have been found suitable for promotion to the posts of Additional Director and above.
After hearing the learned counsel for the parties and on perusal of the record it appears that the petitioner has been pursuing his case for promotion to the posts of Additional Director and above on the basis of illegality committed by the respondents and even after the undertaking given by them to the Court that they would consider the case of the petitioner for promotion, they have not complied with the judgment and order dated 26.4.1991. The petitioner has retired from service on 31.7.1993. It also appears that the State Government vide order dated 28.2.93 had granted promotion to several Joint Directors to the post of Additional Director and then to the post of Director General even some of them who had retired from service. Therefore, it does not lie in the mouth of the respondents to say that the criteria for promotion to the post of Additional Director was merit. Similarly situated persons were granted promotion to the post of Additional Directors from the date, persons junior to them had been promoted, then certainly persons found meritorious for the post of Joint Director and same criteria is also applicable for the post of Additional Director and Director General, it should have been applied uniformally. We find from the record that Sri K.B. Varshney and Dr. S.C. Vashya, who were juniors to the petitioner were promoted to the posts of Additional Director and Director General vide order dated 28.2.98, therefore, it is apparent that the petitioner has been deliberately discriminated with and made to suffer for the litigation for his rights before the Court. It may be that the petitioner might not only be the person who was found suitable for the post of Director General which is a single post but he would certainly be entitled for notional promotion to the post of Additional Director from 8.10.1983. The respondents have not given any reason why such discrimination was practised by them where similarly situated persons were granted promotion to the post of Additional Directors. The petitioner being senior to Sri K.B. Varshney and Dr. S.C. Vashya was certainly had a greater probability for being promoted to the posts of Additional Director and above in comparison to Sri K.B. Varshney and Dr. S.C. Vashya. The contention of learned counsel for the respondents that there was a greater probability that the petitioner might not have been found suitable for promotion to the posts Additional Director and above is fallacious. However, in the instant case, a large number of persons have been given notional promotions, therefore, nothing would be affected if the petitioner is granted notional promotion and be placed at the appropriate place as Additional Director in the seniority list.
However, it is made clear that the petitioner is not entitled to claim any financial or other benefits of this order placing him at the appropriate place in the seniority list of Additional Director by granting notional promotion to the post of Additional Director.
For the reasons stated above, the writ petition is allowed and the impugned order dated 2nd March, 1998 is quashed. No order as to costs.
Dated 27.11.2013
CPP/-
