Dr. Atul Darbari vs State Of U.P. And Another
2017 Latest Caselaw 646 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 37
 

 
Case :- WRIT - A No. - 67125 of 2013
 

 
Petitioner :- Dr. Atul Darbari
 
Respondent :- State Of U.P. And Another
 
Counsel for Petitioner :- Shakti Swarup Nigam,Ram Krishna
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Amreshwar Pratap Sahi,J.
 
Hon'ble Daya Shankar Tripathi,J.
 
Heard Sri Shashi Nandan, learned Senior Counsel for the petitioner and Sri D. K. Tripathi for the respondents-State. 
 
This writ petition had initially prayed for a Mandamus to extend all such service benefits to the petitioner from the date of his initial appointment as a Medical Officer in the Employees State Insurance Scheme of the Labour Medical Services, U.P., i.e. w.e.f. 17.3.1989. Other consequential benefits of promotional pay scale treating the said date to be a valid date has also been claimed after completion of 5 years and 16 years of service respectively. 
 
An amendment was filed praying for quashing of that part of the order whereby the petitioner was regularized w.e.f. 24.7.2009 but the prayer in effect remains to extend all such service benefits with effect from the date of his initial appointment. 
 
The respondent-State was called upon to file a response to the same and a counter affidavit and a supplementary counter affidavit have been field in response to the writ petition as well as to the supplementary affidavit filed on behalf of the petitioner. 
 
The petitioner has filed a second supplementary counter affidavit bringing on record the order served on him on 2.1.2017 that also relates to the allegations made in the counter affidavit about a pending enquiry against the petitioner, the facts whereof are delineated hereunder.
 
The relief claimed is based on the fact that the petitioner came to be initially appointed on 17.3.1989, though on an ad hoc basis, after facing a Selection Committee. The said appointment order continued and the petitioner alongwith such similarly situate Medical Officers were extended the benefit of regularization in terms of the Government Order dated 24.7.2009. A copy of the appointment order as well as the regularization orders are on record. 
 
However, while granting regularization, the same was made subject to the decision in Writ Petition No.1581 (SB) of 2006, Dr. Alok Kumar Mehrotra and others v. State of U.P. and others. 
 
The claim putforth by such similarly situate Medical Officers, namely, Dr. Alok Kumar Mehrotra as well as one Dr. Pratibha Nigam and also in the case of Dr. Sushil Chandra Tiwari and others was scrutinized under a judicial intervention in various writ petitions and ultimately it was held that the said benefits were to be extended keeping in view the meaning of the words 'substantively appointed' as applicable to the controversy under Employees State Insurance Labour Medical Services Rules, 1993. 
 
The question, as to whether the aforesaid period from the date of ad hoc appointment till regularization was to be counted for any such purposes or not, was decided by a Division Bench in Writ Petition No.1573 (SB) of 2012, Dr Sushil Chandra Tewari and others v. State of U.P. and another, vide a decision dated 22.7.2014. A copy of the said order is Annexure - 2 to the supplementary affidavit filed by the petitioner. 
 
During the course of arguments, learned Counsel for the petitioner has invited the attention of the Court to the Division Bench decision in Writ Petition No.15321 (SB) of 2016, Dr. (Smt.) Pratibha Nigam v. State of U.P. decided on 6.7.2016 whereby similar benefits following the judgment in the case of Dr. Sushil Chandra Tiwari (supra) has been extended. It has also been brought to the notice of the Court that against the judgment in the case of Dr.Pratibha Nigam, (supra) The State had preferred a Special Leave Petition before the Apex Court that has been dismissed on 20.3.2017. The judgment of the Apex Court is extracted hereunder:- 
 
"ITEM NO.24                        COURT NO.5                        SECTION XI
 
S U P R E M E   C O U R T  O F  I N D I A
 
RECORD OF PROCEEDINGS 
 
Petition (s) for Special Leave to Apeal (C) ..... CC   No(s). 5007/2017 
 
(Arising out of impugned final judgment and order dated 06/07/2016 as corrected vide order dated 15/07/2016) in WP No.15321/2016 passed by the High Court of Judicature at Allahabad, Lucknow Bench) 
 
STATE OF UTTAR PRADESH AND ANR      Petitioner(s)
 
VERSUS
 
DR. PRATIBHA NIGAM                               Respondent(s)
 
(With application for c/delay in filing SLP)
 
Date: 20/03/2017       This petition was called on for hearing today
 
CORAM:               HON'BLE MR. JUSTICE MADAM B. LOKU8R
 
                            HON'BLE MR. JUSTICE DEEPAK GUPTA 
 
For Petitioner (s)  Mr. Pramod Swarup, Sr. Adv.
 
                            Mr. Vibhu Tiwari, Adv
 
                            Mr. Ravi Prakash Mahrotra, AOR
 
For Respondent(s) 
 
UPON hearing the counsel the Court made the following 
 
O R D E R 

Delay condoned.

The special leave petition is dismissed.

Pending application, if any, is disposed of.

[Meenakshi Kohli]                          [Sharda Kapoor]

Court Master (SH)                         Court Master (NS)"

Thus, it is evident that the Division Bench judgment in the case of Dr. Sushil Chandra Tiwari as followed in the case of Dr. Pratibha Nigam has been upheld by the Apex Court.

Learned Counsel for the petitioner submits that the stand taken in the counter affidavit by the State to the effect that the petitioner had rendered services on ad hoc basis, and therefore he cannot be extended any such benefits stands answered and the ratio of the aforesaid decision in the case of Dr. Sushil Chandra Tewari (supra) squarely applies on the facts of the present case.

It has been then submitted that the counter affidavit and supplementary counter affidavit filed by the respondent State have come up with a case that since no order has been passed in the pending enquiry against the petitioner, similar benefits that have been extended to the other similarly placed Medical Officers, cannot be extended to the petitioner on account of the pendency of the said enquiry.

According to the learned Counsel for the petitioner, even the said contention on behalf of the respondents now stands resolved, inasmuch as the petitioner has been completely exonerated in the enquiry proceedings vide communication dated 2.1.2017. The office memorandum served on 2.1.2017 has been filed as Annexure - 1 to the second supplementary affidavit. It is therefore urged that in view of the petitioner having been exonerated from the enquiry proceedings even this hurdle has been crossed and the petitioner is entitled to the reliefs claimed in the writ petition.

Replying to the aforesaid submissions, Sri Tripathi, learned counsel for the respondent-State has relied on the averments made in the counter affidavit and has urged that in view of the status of the employment of the petitioner from 1989 to 2009 being an ad hoc basis the relief as prayed in the supplementary affidavit cannot be extended to the petitioner. 

Learned Counsel for the petitioner has invited the attention of the Court to the information that has been brought on record by the petitioner about the orders passed in relation to other similarly situate Medical Officers who have been extended such benefits after judicial intervention including that of Dr. Alok Kumar Mehrotra (supra), Dr. Sushil Chandra Tewari (supra), Dr. Pratibha Nigam (supra) as well as others, copies whereof have been placed on record with the supplementary affidavit. Reference be had to the orders dated 5.8.2015 in the case of Dr. Satya Pal Singh and 6 others including that of Dr. Sushil Chandra Tewari, who had retired and the order in the case of Dr. Alok Kumar Mehrotra dated 15.1.2016 and 3 others. It is evident further from the record that all these orders were passed after judicial intervention and the judgment in the case of Dr. Sushil Chandra Tewari (supra), the directions in Contempt Application No.1317/2015 Dr. Sushil Chandra Tewari and others dated 10.7.2015, the order dated 2.12.2010 in Writ Petition No.1581 (SB) of 2006, Dr. Alok Kumar Mehrotra & 3 others v. State of U.P. and another and Writ Petition No.1062 (SB) of 2011 Dr. Alok Kumar Mehrotra and others v. State of U.P. decided on 9.5.2012.

We have considered the submissions raised at length and having perused the entire material on record including the affidavits exchanged between the parties, the net result is that the judgment in the case of Dr. Sushil Chandra Tiwari (supra) squarely applies on the facts of the present case therefore the petitioner is entitled for the benefits as prayed for and made available to others.

So far as the issue of enquiry is concerned, the petitioner has already been exonerated as per the order communicated to the petitioner on 2.1.2017 brought on record and the same is no longer a legal impediment to deny such benefits.

Thirdly, so far as the benefits to other similarly situated Medical Officers is concerned, it is established from the supplementary affidavit and a reply filed thereto by the State that such averments have been admitted to by the State as well.

Consequently, the writ petition is allowed and we issue a direction to the State Government to extend all such service benefits as prayed for and made available to other Medical Officers similarly situate as noted above, to the petitioner to which he is entitled to including pecuniary benefits within eight weeks from the date of production of a certified copy of this order before the respondents.

Order Date :- 15.5.2017

lakshman

[Daya Shankar Tripathi, J.]  [Amreshwar Pratap Sahi, J.]