Atiya Sultana vs State Of U.P. And 6 Others
2021 Latest Caselaw 2755 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 33
 

 
Case :- WRIT - A No. - 13358 of 2020
 

 
Petitioner :- Atiya Sultana
 
Respondent :- State Of U.P. And 6 Others
 
Counsel for Petitioner :- Dinesh Kumar Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ashwani Kumar Mishra,J.

This petition was entertained and time was granted to learned Standing Counsel to file counter affidavit. However, no counter affidavit has been filed.

Considering the nature of order proposed to be passed, further opportunity of filing counter affidavit is not required to be given, particularly when the petitioner has already attained the age of superannuation.

The petitioner was appointed as ad hoc Medical Officer (Community Health) Ayurvedic Services on 27.05.1988 pursuant to a notification issued for appointment to various posts of Medical Officer in the Ayurvedic and Unani Hospitals and Community Health Services. Petitioner claims to have joined pursuant to the order of appointment dated 27.05.1988 and was posted in the Community Health Department at Gorakhpur vide order of the State Government dated 28.06.1988. It is asserted that the petitioner continued to work and ultimately attained the age of superannuation on 31.03.2018. A claim for release of pension and other retiral benefits was placed before the respondents, upon which it has been pointed out that the petitioner has not been regularized and therefore is not entitled to benefit of pension and other retiral benefits.

Learned counsel for the petitioner points out that large number of other persons, who were appointed along with the petitioner, have since been regularized upon completion of three years service, relying upon the U.P. Regularization of Ad-hoc appointment (on post within purview of Public Service Commission) Rules, 1979, as per which the cut-off date was 30.06.1998. Reliance is placed upon the judgment of this Court in Dr. Ravindra Kumar and others vs. State of U.P. and others; Writ-A No. 22833 of 2018. Learned counsel has also placed reliance upon a Division Bench judgment of Lucknow Bench of this Court in Dr. Alok Kumar Mishra and others vs. State of U.P. and others; Service Bench No. 364 of 2011, where the Division Bench, by placing reliance upon the Regularization Rules of 1979, has been pleased to observe as under from para 26 to 34:-

"26. The petitioners are selectees of a selection proceeding initiated by issuing advertisement in the news papers inviting applications from eligible and qualified candidates against the vacancies available on the post of Medical Officers (Ayurvedic and Unani). A selection Committee was constituted, which selected the petitioners along with other similarly situated Medical Officers and they were granted appointment on their respective posts in different districts.

27. U.P. Regularization of Ad hoc appointments (On Posts within the Purview of Public Service Commission), Rules, 1979 was amended vide notification issued in the official gazetted on 20.12.2001. The Medical Officers, who were appointed in pursuance to the selection made in the year 1988 on ad hoc basis, claimed regularization on completion of three year's service, as was provided under the amended rules. Taking into consideration the grievances of the petitioners, the State Government issued a notification on 12.01.2010, whereby the Medical Officers, who were working on ad hoc basis and were regularized in the year 2003 and 2005 were considered and were directed to be regularized w.e.f. 21.01.1991. Thereafter, during course of consideration, it came to notice that the Medical Officers, who were selected and appointed in the selection proceeding of 1988, are not completing three year's ad hoc service till 21.01.1991. Therefore, their claims were rejected.

28. A petition Writ-A No.30339 of 2010; Dr. Muinuddin and others Vs. State of U.P. and others was filed before the Division Bench of this Court, wherein after considering the provisions of Rules of 1979, the following direction was issued vide judgment and order dated 25.05.2010:

"The writ petition is accordingly disposed of with directions that the State Government will issue fresh corrected list and consequential orders as expeditiously as possible and preferably within a period of 8 weeks. In the meantime the benefits drawn by the petitioners in terms of the regularisation orders in their favour shall not be withdrawn from them. It will be open to the petitioner to challenge, if any person, junior to them is placed higher to the petitioners, on account of such modifications or consequential orders."

29. On perusal of the direction contained under the aforesaid judgment and order, it is transpired that the State Government was directed to issue a fresh corrected list and consequential orders as expeditiously as possible preferably within a period of eight weeks. In the meantime, the benefits drawn by the petitioners in terms of the regularization orders in their favour shall not be withdrawn from them. It was open to the petitioners to challenge, if any, person junior to them is placed higher to the petitioners, on account of such modifications or consequential orders.

30. In compliance of the said order, the State Government reconsidered the matter and passed an order on 28.07.2011, whereby it has been provided that ad hoc Medical Officers, who have completed three years of ad hoc service, should be provided regularization from the date of completion of their ad hoc services of three years.

31. The petitioners have been selected in the same selection proceeding. By placing them in different cadre, their claim for regularization on completion of three year's service, as resolved by the State Government cannot be denied. They are also covered under the provisions of Rules of 1979, as they have also completed their ad hoc services, as the Medical Officers, who were selected in the same selection proceeding and have been granted benefit of regularization. Thus, the ground of rejection in the impugned order is not sustainable in law.

32. On perusal of the provisions contained under the rules, it is evident on the face of it that it has not carved out distinction between the cadres. It provides that the ad hoc Medical Officers, who have completed three year's service on the particular date, are entitled to be considered for grant of regularization.

33. Once, the State Government has resolved to grant promotion from the date of completion of three year's service taking into consideration the Rules of 1979 and has provided benefit to certain Medical Officers with effect from the date of completion of three years service, then the petitioners being selectees of the same selection proceeding, cannot be deprived from the benefit provided to the similarly situated candidates.

34. In view of the finding recorded above, all the writ petitions are disposed of with direction to respondents to reconsider the case of the petitioners for regularization and payment of salary in accordance with the provisions contained under U.P. Regularization of Ad hoc appointments (On Posts within the Purview of Public Service Commission), Rules, 1979 and to pass appropriate reasoned and speaking order within a period of six weeks from the date of production of a certified copy of this order in accordance with the observations made above."

In the facts of the present case, the petitioner's claim for regularization is also required to be considered in light of the above observations and in accordance with the provisions contained in the Regularization Rules of 1979. An appropriate decision in that regard would be taken within a period of three months. Based upon the decision taken in the matter of regularization, the respondents shall further process petitioner's claim for retiral benefits within a further period of three months, thereafter.

Accordingly, the petition stands disposed of.

Order Date :- 22.2.2021

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