Allahabad High Court
Avadhesh Gupta (In Wria 14316 Of ... vs State Of U.P. Thru. Prin. Secy. ... on 12 April, 2022
Bench: Devendra Kumar Upadhyaya, Subhash Vidyarthi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 2
Case :- SPECIAL APPEAL No. - 148 of 2022
Appellant :- Avadhesh Gupta (In Wria 14316 Of 2021)
Respondent :- State Of U.P. Thru. Prin. Secy. Medical And Health Department, Lko. And Others
Counsel for Appellant :- Anurag Narain Srivastava,Shailendra Kumar Misra
Counsel for Respondent :- C.S.C.
Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Subhash Vidyarthi,J.
Heard Sri Anurag Narain Srivastava, learned Counsel for the appellant-petitioner and learned State Counsel.
This intra-court appeal seeks to impeach the judgment and order dated 02.12.2021 passed by learned Single Judge whereby writ petition filed by appellant-petitioner, namely, Writ Petition No. 14316(SS) of 2021 has been dismissed.
The appellant-petitioner by filing the aforesaid Writ Petition No. 14316(SS) of 2021, had challenged an order dated 01.01.2021 whereby his representation relating to transfer/posting was rejected by the Director, Medical and Health Services, Uttar Pradesh. Further prayer was made in the writ petition that respondents therein, may be directed to pay arrears of salary and regular salary to the appellant-petitioner.
For better appreciation of the issue involved in this Special Appeal, we have taken note of certain facts. The appellant-petitioner, who is working as Pharmacist in the department of Medical and Health, was posted in Gaurifanta District Lakhimpur Kheri, however, by means of order dated 18.03.2020 he was transferred to Primary Health Centre Ishanagar in the same district. The said order of transfer dated 18.03.2020 was challenged by the appellant-petitioner by filing Writ Petition No. 7944(SS) of 2020, which was finally disposed of by the learned Single Judge by means of an order dated 29.04.2020, whereby it was provided that petitioner shall submit his joining at the place where he was transferred, within one week and it was kept open for the appellant-petitioner to make a fresh representation raising all his grievances before the Chief Medical Officer, Lakhimpur Kheri, who was directed to decide the same by passing reasoned and speaking order.
Pursuant to the said order dated 29.04.2020, the appellant-petitioner is said to have join at Ishanagar, however this fact is being denied by the State-authorities. The appellant-petitioner however, filed a Special Appeal bearing No. 146 of 2020 challenging the order dated 29.04.2020 passed by learned Single Judge. The Special Appeal was disposed of by a Co-ordinate Bench of this Court by means of judgment and order dated 22.05.2020 with the modification in the order dated 29.04.2020 passed by learned Single Judge and in place of Chief Medical Officer, the Director, Medical and Health Services, was directed to consider the representation preferred by the appellant-petitioner.
Consequent to the said judgment and order dated 22.05.2020 passed in Special Appeal No. 146 of 2020, the representation of the appellant-petitioner was considered and the Director, Medical and Heath Services, by means of order dated 08.06.2020, instead of deciding the representation of the appellant-petitioner himself, referred the matter to Chief Medical Officer concerned, to consider the representation of the appellant-petitioner and take appropriate steps for adjusting him.
The said order dated 08.06.2020 was challenged by the appellant-petitioner by filing Writ Petition No. 22048(SS) of 2020, which was finally disposed of by learned Single Judge by means of order dated 24.11.2020 whereby the order dated 08.06.2020 was set aside and the Director, Medical and Health Services was directed to summon the report from the office of Chief Medical Officer Lakhimpur Kheri and decide the question of posting of appellant-petitioner thereafter.
In compliance of the said order dated 24.11.2020, the Director, Medical and Health Services passed an order on 01.01.2022 whereby the representation of the petitioner was disposed of by the Director, who maintained the order of transfer of appellant-petitioner from Primary Health Centre Gaurifanta, District Lakhimpur Kheri to Primary Health Centre, Ishanagar, District Lakhimpur Kheri.
It is this order dated 01.01.2022, which was challenged by the appellant-petitioner by filing Writ Petition No. 14316(SS)2021, which has been dismissed by means of judgment and order dated 02.12.2021 which is under challenged herein.
Learned Counsel for the appellant-petitioner has submitted that in the writ petition before learned Single Judge appellant-petitioner had made two prayers, namely (1) for quashing the order dated 01.01.2021 and also (2) for issuing a direction to the respondents in the writ petition to pay the appellant-petitioner arrears of salary and also to pay him regular salary.
It has, thus, been argued that so far as prayer no. (2) made in the writ petition is concerned, the said issue has not been decided by the learned Single Judge and as such the judgment and order under appeal suffers from the said lacuna. In this view, the submissions is that the judgment and order passed by learned Single Judge is liable to be set aside and appeal be allowed.
On the other hand, learned Counsel for the State has submitted that so far as challenge to the order dated 01.01.2021 made by the appellant-petition in the writ petition is concerned, the judgment and order passed by learned Single Judge does not require any interference for the reason that judgment is based on sound reasons. However, he could not dispute that the second prayer made in the writ petition has not been adjudicated by learned Single Judge.
Sri Amitabh Kumar Rai, learned Additional Chief Standing Counsel has further submitted that the question of payment of arrears in this case does not arise, for the reason that the appellant-petition is said to have submitted his joining at Ishanagar only on 12.03.2021.
We have considered the rival submissions made by learned Counsel appearing for respective parties and also perused the records available before us on this Special Appeal.
So far as the prayer relating to quashing the order dated 01.01.2021 is concerned learned Single Judge has appropriately considered and adjudicated the same by observing that at Primary Health Centre Ishanagar, two vacant posts of Pharmacist are available and as such there is no legal impediment in acceptance of the joining of petitioner at Ishanagar.
We thus, do not feel it appropriate to interfere in the judgment and order under appeal in so far as the same dismisses the writ petition in relation to the prayer for quashing of the order dated 01.01.2021. However, what we notice is that prayer (2) made in the writ petition whereby the appellant-petitioner had made a prayer to issue a direction to the opposite parties in writ petition to pay arrears of salary, the same has not been adjudicated by learned Single Judge. As to whether appellant-petition is entitled to arrears of salary is to be decided by the appointing authority considering the facts and circumstances.
Accordingly, we provide that for arrears of salary/regular salary etc., the appellant-petitioner shall represent the Chief Medical Officer concerned, within two weeks from today by making an application/representation taking all pleas which may be available to him under law and in case, such an application/representation is made, Chief Medical Officer concerned shall take appropriate decision on the grievances of the appellant-petitioner within next six weeks.
We make it clear that we have not made any observations as to the merits of the claim/entitlement of the appellant-petitioner in relation to his prayer for payment of arrears of salary. The said issue shall be decided by the Chief Medical Officer concerned after calling for requisite reports and after perusal of the relevant documents.
With the aforesaid observations and directions, the Special Appeal is finally disposed of.
Order Date :- 12.4.2022
Jyoti/-
