Dr. Gulab Chand Gupta vs State Of U.P. And Others
2016 Latest Caselaw 6928 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

    	AFR	
 
Court No29
 
                                                               
 
 Civil Misc. Writ Petition No.42421 of  2006
 
  Dr. Gulab Chandara Gupta
 
Vs.
 
State  of U.P. through Chief Secretary, Medical Health and Family Welfare and others
 
******** 
 
Hon'ble Tarun Agarwala,J.

Hon'ble Pramod Kumar Srivastava,J.

(Per: Tarun Agarwala,J.)

We have heard Sri Gyanendra Kumar Singh, the learned counsel for the petitioner and Sri Ajit Singh, the learned standing counsel appearing for the State.

The petitioner has prayed for the quashing of the Government Order dated 2.2.2005 by which the petitioner was granted notional promotion to the post of Joint Director, but was denied the higher post of Additional Director and Director on the ground that these posts can only be filled up on the basis of merit under Rule 4 of the Uttar Pradesh Government Servants Criterion for Recruitment by Promotion Rules, 1994 (hereinafter referred to as the Rules of 1994). The petitioner has also prayed for a writ of mandamus commanding respondent no.1 to grant all consequential benefits including promotion and pension on the basis of final seniority list dated 5.6.2003 pursuant to the decision of the Supreme Court dated 4.12.2002. The petitioner has prayed that notional promotion to the post of Deputy Chief Medical Officer w.e.f. 1.5.1979 as well as notional promotion to the post Additional Director w.e.f. 1.5.1990 and notional promotion to the post of Director w.e.f. 22.5.1996 should be given, which is the date when juniors to the petitioner were promoted on the said post. The petitioner has also prayed that in addition to the notional promotion, arrears of salary till the date of retirement and re-fixation of pension, salary, gratuity, etc. should also be granted.

The facts leading to the filing of the present writ petition need not be elaborated as necessary details have been graphically stated in the judgment of the Supreme Court in Dr. Chandra Prakash and others vs. State of Uttar Pradesh and another, 2002(10)SCC 710. However, in a nut shell, the petitioner held an MBBS degree and was appointed on a temporary basis against a substantive vacancy in the Provincial Medical Service (PMS) by Governor on 30.12.1968, which was in accordance with the provisions of the United Province Medical Service (Men's Branch) Rules, 1945. The petitioner was subsequently recommended and selected by the U.P. Public Service Commission and was confirmed on 21.1.1978. Subsequently, PMS was merged with the Provincial Health Service (PHS) and a new cadre was formed, namely, Provincial Medical and Health Services (PMHS). Based on this new cadre a large number of persons were appointed by the State Government on temporary basis. Selections were also made by the U.P. Public Service Commission. From the period 1968 to 1979 there were three groups of doctors, namely, the doctors who were given temporary appointment and who had been selected by the U.P. Public Service Commission; the doctors, who were given temporary appointment but were not selected by the Public Service Commission and the doctors who were selected by the Public Service Commission without being temporarily appointed.

Based on these three categories of doctors, a seniority list was prepared sometimes in the year 1983 or thereafter, on the basis of which, promotion to a higher post was made. This promotional list and consequential promotion of certain doctors lead to a spate of litigation before the High Court and various orders were passed from time to time. Eventually, the matter was heard and decided by the Supreme Court in Dr. Chandra Prakash case (supra). The Supreme Court allowed the writ petition and held:

"We accordingly allow the writ petitions and declare that (1) the writ petitioners are not within the purview of the 1979 Rules; (2) the State Government will fix the seniority of all doctors in the PMHS cadre from the date of the orders of their initial appointment within a period of six weeks from the date of this order and give all consequential benefits including promotions and positions on the basis of such seniority list; (3) Those doctors who were selected in 1972 and 1977-78 by the PSC and who were not issued any orders of appointment and joined the service on the basis of Tandon's case, will be treated as having been appointed on the date that they actually joined the service and their seniority will be counted from that date. There will be no order as to costs."

The Supreme Court held, that the State Government would fix the seniority of all the doctors in the PMHS cadre from the date of the orders of the initial appointment and give all consequential benefits including promotions and positions on the basis of such seniority list.

Based on the direction of the Supreme Court the State Government issued a seniority list dated 5.6.2003 in which the petitioner was placed at Sl. No.521. The petitioner moved a representation praying that based on the seniority list he should be granted promotion w.e.f. 29.6.1999 on the post of Additional Director and thereafter on the post of Director in view of the fact that on these dates, juniors to the petitioner were given promotion. Nothing was done on the petitioner's representation and, eventually, by an order dated 2.2.2005, notional promotion list of 1276 retired officers in PHMS cadre was issued in which the petitioner was given notional promotion to the post of Joint Director w.e.f. 1.1.1986. The petitioner was, however, denied the notional promotion from the post of Additional Director and from the post of Director on the ground that these posts are required to be filled up on the basis of merit under the 1994 Rules. The petitioner, being aggrieved by this promotional list dated 2.2.2005 has filed the present writ petition praying for various reliefs as indicated aforesaid.

In paragraph 27 of the writ petition, the petitioner contended that the petitioner was placed at serial no.521 whereas Dr. Sumati Sheel Sharma was placed at serial no.1099. Similarly in paragraph 25 of the writ petition, the petitioner has categorically stated that Dr. Qazi Anwar Ahmad was placed at serial no.730, Dr. Gayatri Sharma was placed at Sl. No.755, Dr. K.K. Nimboria was placed at Sl. No.784, Dr. Babu Ram Bajpai was placed at Sl.No.791 and Dr. H.C. Vaish was placed at Sl. No.818 who were juniors to the petitioner and were promoted to the post of Joint Director. The petitioner has further stated that Dr. Sumati Sheel Sharma, who was placed at Sl.No.1099 and Dr. H.C.Vaish, who were placed at Sl.No.818 were further promoted to the post of Director w.e.f. 22.5.1996 and 11.10.1996 respectively.

The petitioner in paragraphs 28, 29, 30, 31, 32, 33, 34 and 35 of the writ petition have made a categorical assertion that juniors to the petitioner were given promotion to the post of Joint Director, Additional Director and thereafter as Director but the petitioner was not given promotion on these dates as in the earlier seniority list these persons were placed higher than the petitioner.

The aforesaid facts have not been disputed by the State in their counter affidavit. In fact the respondents have admitted that on the basis of the earlier seniority list the persons mentioned by the petitioner were given promotion to the post of Joint Director and two of these persons were promoted to the post of Additional Director and thereafter to the post of Director. At the same time, the respondents contends that the petitioner is not entitled to be promoted to the post of Additional Director and to the post of Director in view of Rule 4 of the Rules of 1994, which prescribes that the post of Additional Director and the post of Director can only be filled up by way of merit and not by way of seniority subject to rejection of unfit.

In this regard Rule 4 of the Rules of 1994 is extracted hereunder:

"4. Criterion for recruitment by promotion.- Recruitment by promotion to the post of Head of Department, to a post just one rank below the Head of Department and to a post in any service carrying the pay scale, the maximum of which is Rs.18,300 or above, shall be made on the basis of merit, and to rest of the posts in all services to be filled by promotion, including a post where promotion is made from a non-gazetted post to a gazetted post or from one service to another service, shall be made on the basis of seniority subject to the rejection of the unfit."

Based on the aforesaid Rules, the learned standing counsel contended that the pay scale on the post of Additional Director and Director is above Rs.18,300/- and therefore the said post can only be filled up on the basis of merit and not on the basis of seniority.

Be that as it may. Nothing has been indicated by the State in their counter affidavit that the persons mentioned by the petitioner, namely, Dr. Sumati Sheel Sharma and Dr. H.S.Vaish were promoted on the post of Additional Director and on the post of Director, on the basis of merit. The respondents have only contended that they were given promotion on the basis of the earlier seniority list since their names were found higher in the seniority list and the petitioner was not considered as he was ineligible.

In view of the above, we find that contradictory stand is being taken by the respondents. The petitioner is being denied notional promotion on the strength of Rule 4 of the Rules of 1994 holding that promotion can only be made on the basis of merit whereas the respondents themselves have given promotion to the juniors to the petitioner without considering Rule 4 of the Rules of 1994.

We also find from the perusal of the Government order dated 2.2.2005 that notional promotion was given to the petitioner and to those who were junior to the petitioner on the post of Joint Director, but no order has been passed for cancellation of the promotion made to those juniors on the post of Additional Director and on the post of Director. It becomes apparently clear that promotion, which was given illegally earlier to the juniors on the post of Additional Director and Director was not touched by the State while declaring the promotional list dated 2.2.2005 and such juniors were allowed to get the benefit of the higher post. Such action indicates arbitrariness on the part of the respondents and also indicate that the direction of the Supreme Court was not complied in letter or in spirit.

The Supreme Court, in its judgment, clearly held that the seniority list has to be prepared from the date of their initial appointment and consequential benefits including promotion and position should be given on the basis of such seniority list. The seniority list was prepared in the year 2003 in which juniors had already been given notional promotion from retrospective dates but the petitioner is being denied such benefit. Such discrimination is writ large and cannot be sustained.

Consequently, on account of the aforesaid reasons the impugned order dated 2.2.2005 denying notional promotion to the petitioner to the post of Additional Director and Director in so far as it relates to the petitioner is quashed. The writ petition is allowed. A writ of mandamus is issued commanding respondent no.2 to grant notional promotion to the petitioner on the post of Additional Director with effect from 1.5.1990, i.e., on the date when juniors to the petitioner were promoted to the post of Additional Director and also grant notional promotion to the post of Director with effect from 22.5.1996, on the date when juniors to the petitioner were promoted.

The pay scale would, accordingly, be refixed which will be done notionally. Arrears of salary on the higher post will not be paid. The notional pay scale that would be fixed only for the purpose of calculating pension, gratuity and other retirement dues which shall be calculated and paid within the period of three months from the date of the production of a certified copy of this order.

 
Dated :9.11.2016
 
AKJ 
 
  
 
  (Pramod Kumar Srivastava,J.)     (Tarun Agarwala,J.)