Dr. Jagannath Prasad Gupta vs State Of U.P. Thru ...
2021 Latest Caselaw 6891 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R.
 
Court No. - 6
 

 
Case :- SERVICE BENCH No. - 2029 of 2015
 

 
Petitioner :- Dr. Jagannath Prasad Gupta
 
Respondent :- State Of U.P. Thru Prin.Secy.Medical Health & Family & Ors.
 
Counsel for Petitioner :- Y.S. Lohit,R.S. Tomar
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

(Oral)

1. Heard learned counsel for the petitioner and Sri Shatrughan Chaudhary, learned Additional Chief Standing Counsel for the State-Respondents.

2. This petition has been filed by the petitioner challenging the order dated 05.05.2015 passed by respondent no.2 and praying for issuance of mandamus to the respondents to grant notional promotion to the petitioner to the post of Additional Director w.e.f. 21.06.1990 and to the post of Director w.e.f.22.05.1996 respectively alongwith consequential benefits including arrears of salary coupled with interest at the market rate i.e. from the respective date of such promotion;since the persons junior to the petitioner, namely, Dr. Sumati Sheel Sharma has been granted such benefit in furtherance of general directions issued by Supreme Court as well as by this Court in various other writ petitions.

3. It appears that petitioner was appointed on the post of Medical Officer In-chargeon 21.02.1969. He appeared before U.P. Public Services Commission on 31.08.1970. Dr. Sumati Sheel Sharma was appointed to the post of Medical Officer in March,1971 and and was placed in the Seniority List at Sl. no.768 .Petitioner was appointed more than two years before Dr. Sumati Sheel Sharma but was placed at Sl.no. 1189 because of discrepancy in fixation of seniority.Dr. Sumati Sheel Sharma was given promotion to the post of Joint Director, Additional Director and Director but the petitioner who was senior to her was deprived such benefits. The petitioner retired from service 31.07.1998 from the post of Nagar Swasthya Adhikari, Lucknow in Joint Director's pay scale. In the meantime, on the recommendation of Equivalence Committee Report, 1982 by an order dated 11.01.1991, the State Government had taken a decision to grant personal pay scale of 3700-5000 to those doctors who came into Senior Grade Officer Category on 01.01.1986 and then completed two years continuous services in Senior Grade Officer scale. The seniority of the petitioner was again wrongly mentioned in the order granting senior grade.

4. In pursuance of seniority dispute raise in Dr. Chandra Prakash case, (Writ Petition No. 43 of 1998), Hon'ble the Supreme Curt delivered the judgment and order dated 04.12.2002 directing the State Government to fix the seniority of all doctors in the P.M.H.S. Cadre from the date of the order of their initial appointment within a period of six weeks and to give all consequential benefits including promotion and position on the basis of such seniority. In pursuance of the order passed by Hon'ble Supreme Court in Dr. Chandra Prakash's case, the State Government prepared a seniority list according to the date of initial appointment of the doctors in P.M.H.S. cadre by a Government Order. On 20.02.2003, placing the petitioner at Sl. No.535 in the seniority list but the consequential benefits including promotion and arrears of salary were not given to him.

5. Petitioner submitted a representation before the State Government on 16.10.2003 praying that one Dr. Sumati Sheel Sharma, who had been wrongly given seniority above him earlier had been promoted on the post of Joint Director on 01.01.1986 and Additional Director on 21.06.1990 and prayed for notional promotion and consequential service benefits from the date his junior was given the said benefit.Dr. Sumati Sheel Sharma has been shown at Sl. No.1099 in the corrected seniority list dated 20.02.2003.She had been given all consequential benefits showing her in the personal pay scale of Joint Director and Additional Director and then in the personal pay scale of the post of Director w.e.f. 22.05.1996.The petitioner was senior placed at 535 in the seniority list, but he was denied the said benefits and when the petitioner's representation was not decided, he filed Writ Petition No. 04(S/B) of 2004 which was disposed of by this Court by its judgment and order dated 25.04.2005 recording the statement of learned Chief Standing Counsel that the notional promotion and consequential benefits etc. would be given as per petitioner's seniority as had already given to all similarly situated persons within a period of three months .

6. The petitioner filed Contempt Petition No. 726 of 2006 when his case was not duly considered. The said contempt petition was disposed on 18.07.2013 recording therein the stand taken by Dr. Devendra Kumar Srivastava, Director General, Medical Health , U.P. that seniority can be given and also notional promotion only upto the post of Joint Director, the post of Additional Director and Director and Director General being selection posts where merit had to be considered, no notional promotion can be given to the petitioner as he had already retired in 1998.The contempt court in its order dated 18.07.2013 directed the petitioner to file a fresh representation. The petitioner filed such representation on 09.10.2013 and again on 21.04.2014 raising his grievance before the opposite party no.2 The opposite party no.2 passed an order dated 07.10.2014 rejecting the case of the petitioner.

7. Learned counsel for the petitioner says that although the representation of the petitioner was rejected, the representations of the similarly situated doctors for example Dr. Virendra Singh Pachara and others were accepted subject to decision in S.L.P. No.29234 of 1998 (renumbered as Civil Appeal No. 3041 of 2010 )It is a case of the petitioner that direction of Hon'ble Supreme Court have been complied with by the Authorities in a pick and choose manner . Civil Appeal no. 3042 of 2010 was filed by one of the doctor who was granted the benefit of judgment rendered in Dr. Candra Prakash's case has been allowed by the Supreme Court by observing that the High Court had wrongly failed to grant the arrears of salary payable to the appellant therein,and directing that the appellant be given consequential benefit of arrears of pay also in view of the notional promotion granted to him within three months from the date of order. with interest @ 6 % from the date judgment of the court.

8. Learned counsel for the petitioner had also drawn the attention of this Court to averments made in para-30 of the writ petition, which states in the form of Table/Chart the names of Medical Officers who had been given benefit of Selection Grade of the post of Joint Director and promotion upto the rank of Additional Director/ Director/ Director General on the basis of seniority prepared after judgment rendered in the case of Dr. Chandra Prakash .

9. Learned Standing Counsel appearing on behalf of State-Respondents has pointed out the contents of para-4 from the counter affidavit sworn by one Sri Satya Prakash Singh Sengar, Deputy Secretary, Medical & Health Department Government of U.P. In paragraph-4 , in reply to the contents of para 9 to 24 to the writ petiotn , it has been stated that seniory list was prepared in compliance of Hon'ble Supreme Court's order in Dr. Chandra Prakash case on 05.06.2003 and the petitioner has been placed at sl. no. 535 in the seniority list on the basis of this seniority notional promotion was granted on senior grade and Joint Director Grade by orders dated 20.05.2005 and 02.02.2005. However, there was no basis for granting notional promotion to the post higher than that of Joint Director i.e. Additional Director and Director Grade as there were selection posts and the petitioner had retired on 31.07.1998 It has been submitted that all the Medical Officers were granted pay scale up to the post of Joint Director only including the petitioner.The petitioner was granted senior grade w.e.f. 16.03.1979 and Joint Director Grande w.e.f. 01.04.1986 i.e. from the date of promotion of his junior. Consequential order for revision of pension was also issued thereafter. The representation of the petitioner dated 16.01.2015 was disposed of on 05.05.2015 and such order dated 05.05.2015 is valid and justified.

10. There is no denial in the counter affidavit of the allegation made by the petitioner that Dr. Sumati Sheel Sharma, who was his junior and several other doctors, whose names have been mentioned in para-30 to the counter affidavit have not been given the benefit of pay scale of Additional Director/ Director/ Director General .There is also no denial of Civil Appwal no. 3042 of 2010 having been allowed on 24.07.2014 directing payment of arrears in pursuance of notional promotion alongwith interest of 6% from the date of judgement of Hon'ble Supreme Coourt to the appellant therein.

11. During the course of arguments, learned counsel for the petitioners has read out the judgment and order dated 25.04.2005 passed in Writ Petition no. 4 of 2004, and the order passed in Contempt Petition no.726 of 2006 and also the judgement and order dated 31.08.2017 passed in Writ-A no. 3334 of 2009 (Ramji Pandey Vs. State of U.P.) filed as annexure no.1 to the Supplementary affidavit. filed by the petitioner on24.04.2018 as also the judgement rendered in the case of Dr. Gulab Chandra Civil Writ Petition no.42421 of 2006 dated 09.11. 2016 referred in the judgment of Division Bench of Dr. RamJi Pandey ( supra) . It has been submitted that S.L.P. with Diary No. 33951 of 2018 was filed by the State of U.P. against the judgment rendered in the case of Ramji Pandey. Hon'ble the Supreme Court while issuing notice on the application on 20.10.2018 has observed that such entertaining of S.L.P. is limited to the question of payment of arrears of salary.

12. This Court having considered the two jdugments passed by Division Benches in the case of Gulab Chandra and Dr Ramji Pandey, the arguments as raised by learned counsel for the petitioner through video conferencing, finds that the same reason for rejecting the case of the petitioner have been mentioned in the impugned order dated 05.08.2018 as have been mentioned in the counter affidavit filed by the respondents he impugned order also considers the case of Dr. Sumati Sheel Sharma and mentions that Dr. Sumati Sheel Sharma was placed at Sl. no. 1099 of the seniority list and 21 other doctors, who were senior to her including those who had retired from service or died had been given notional promotion as Additional Director w.e.f. 21.06.2009 and the notional promotion on the post of Director in the pay scale of 5900-6300 w.e.f. the date that Dr. Sumati Sheel Sharma was given such promotion. This fact mentioned in the order dated 05.05.2015, as also the fact that petitioner was placed at Sl. no.535 of the seniority list has convinced the Court that the impugned order is liable to be set aside.The case of the petitioner has been rejected only on the ground that Dr. Sumati Sheel Sharma had been given promotion on 21.06.1990 and 22.05.1996 on the basis of earlier seniority list and the petitioner was at that time junior to Dr. Sumati Sheel Sharma, therefore, he cannot claim the same benefit. Additionally, a reference has been made of pension, re-fixation having been done by the Government Order dated 30.12.2005 and 13.06.2006 and of Writ Petition No.2877 of 2004 (Dr. Rajendra and others Vs. State of U.P. and others) having been decided by High Court on 10.1`1.2005 with the observation that only notional promotin can be given and pension re fixation can be done alongwith other retiral benefits but arrears of salary cannot be given on the principle of " No Work No Pay".

13. The reasons given in the impugned order for rejecting the case of the petitioner for grant of notional promotion are arbitrary in the face of observations made by Division Benches of this Court in the case of Gulab Chandra and Dr. Ramji Pandey as mentioned herein above.

14. The Division Benches of this Court in the aforesaid two judgments have allowed the writ petitions with the direction to the respondents to grant benefit of notional promotion to the writ petitioners to the post of Additional Director and Director as and when it fell due in accordance with rules as notified in August, 2004 and the pay scale was to be refixed and the arrears of salary were to be recalculated and to be paid within three months from the date of passing of the order. Consequential benefits of re- fixation of pension, gratuity and other post retiral benefits were also to be made available to the writ petitioners and if such payment was delayed beyond three months the same was to accrue 6% simple interest from the date of jdugment to the date of payment.

15. Similar orders have been passed by Hon'ble the Supreme Court in Civil Appeal no.3041 of 2010 as have been mentioned in para-26 to the writ petition which has not been specifically denied by the respondents in the counter affidavit.

16. This writ petition is allowed in the same terms as the decision by this Court on 31.08.2017 in Writ -A N. 3334 of 2009 (Ramji Panday Vs. State of U.P.).

17. Let appropriate order be passed by opposite party no.2 making them subject to decision in SLP with Diary no. 33951 of 2018 ( State of U.P. Vs. RamJi Pandey.

18. A direction is issued to the respondents to grant notional benefits of promotion to the petitioner as Additional Director and Director as and when it falls due in accordance with the Rules as notified on 11th August, 2004 and the pay shall be re-fixed and payment of arrears of salary on such re-calculation shall be made as expeditiously as possible, preferably within three months from today. The consequential benefits of pension, gratuity and other retiral dues shall also be available to the petitioner. In the event the payment is delayed beyond three months, the same shall carry 6% simple interest from the date of this judgment to the date of payment.

Order Date :- 1.7.2021

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