State Of U.P.Thru.Addl.Chief ... vs Dr. Manoj Singh And Others
2022 Latest Caselaw 9013 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 2
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 114 of 2022
 

 
Appellant :- State Of U.P.Thru.Addl.Chief Secy.Medical And Health Civil Secrt.Lko.And Ors(In Wria 28403 Of 2021)
 
Respondent :- Dr. Manoj Singh And Others
 
Counsel for Appellant :- C.S.C.
 
Counsel for Respondent :- Prabhu Sharan
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Rajnish Kumar,J.

(Order on application for condonation of delay)

Office has reported a delay of 31 days in filing this appeal.

Having heard learned counsel for appellant as also Sri Prabhu Sharan, learned counsel representing the respondents and having perused the averments made in the affidavit filed in support of the application seeking condonation of delay, the Court is satisfied that delay has sufficiently been explained.

Accordingly, application is allowed and delay in preferring this appeal is condoned.

(Order on memo of appeal)

Under challenge in this intra-court appeal filed under Chapter VIII Rule 5 of the Rules of the Court are two orders passed by learned Single Judge, namely, the order dated 07.12.2021 passed in Writ Petition No.28403 (S/S) of 2021 filed by the respondents-petitioners and the order dated 01.04.2022 whereby the prayer for review of the order dated 07.12.2021 has been rejected.

Respondents-petitioners are regularly appointed members of Provincial Medical and Health Services (hereinafter referred to as "PMHS') and have Master's Degree either in medicine or surgery to their credit. Respondents when inducted as members of PMHS were having only MBBS degree, however, in terms of policy of the State Government they were permitted to pursue their master's course in medicine or surgery. One of the conditions set out by the State Government for permitting MBBS degree holder doctors to pursue postgraduate course is that they shall be relieved of their duties to pursue postgraduate courses on the condition that once they complete the said course, they will serve with the department at least for 10 years and in case before completion of 10 years, they for some reason or the other, quit their service, they will have to deposit rupees one crore. Thus, for issuing ''No Objection' to such members of PMHS who intend to pursue their master's course either in medicine or surgery, one of the conditions is that they will have to execute a bond to the aforesaid effect.

The respondents-petitioners on executing a bond, as mentioned above, were relieved of their duties to pursue their postgraduate courses in medicine or surgery and after completion of such course they resumed their duties. After resuming their duties in the department, the respondents-petitioners intended to pursue Senior-Residentship in various medical colleges in the State of U.P.

The State Government has issued Government Order on 09.12.2020 clearly providing therein that in no circumstance members of PMHS who complete their postgraduate course will be given permission to join Senior-Residentship in the medical colleges. The Government Order further provides that in various hospitals in the State of U.P. DNB course is being run where the members of PMHS who are having postgraduate degree to their credit can be sent for serving as Senior Residents in such hospitals of the State of U.P. The respondents desirous of pursuing Senior-Residentship in the medical colleges instituted a Writ Petition No. 28403 (S/S) of 2021 with the following prayers:-

"(i) to issue a writ, order or direction in the nature of Certiorari, thereby quashing the impugned Government Order dated 09.12.2020 (contained in Annexure no.1 to this writ petition) to the extent by which the State Government has taken a decision not allow the Doctors having P.G. Degree of PHMS Cadre to pursue the Senior Residentship.

(ii) to issue a writ, order or direction in the nature of Mandamus commanding the opposite parties to issue No Objection Certificate to petitioners for pursing Senior Residentship ignoring the impugned Government Order dated 09.12.2020 (contained in Annexure No.1 to the writ petition).

(iii) issue any other writ order or direction in the nature and manner which this Hon'ble Court may deem fit, proper and just in the circumstance of the case."

From a perusal of the prayer clause of the writ petition filed by the respondents, it is clear that they essentially prayed for issuing a writ of certiorai quashing the Government Order dated 09.12.2020 which clearly provides that in no circumstance permission to pursue Senior-Residentship in the medical colleges in the State of U.P. shall be given to those members of PHMS who have completed their postgraduate course in medicine/surgery. The direction for issuing ''No Objection' for the said purpose, thus, could have been given by learned Single Judge only once prayer no.1 made in the writ petition would have been granted, that is to say, unless and until condition which was challenged before learned Single Judge in the writ petition contained in the Government Order dated 09.12.2020 was quashed or set-aside, in our considered opinion, direction to issue ''No Objection' for pursuing Senior-Residentship to the respondents could not have been given.

Learned Single Judge while disposing of the writ petition by means of the order dated 07.12.2021, which is under challenge herein, has recorded the undertaking given by the respondents that term of service as per bond, which the respondents had executed at the time of seeking permission to pursue postgraduate course in medicine/surgery, may be extended for one year and directed the State authorities to issue ''No Objection' for the purpose of making application for one year's Senior-Residentship with the condition that period of government service, as per bond executed, shall stand extended for one more year.

The State authorities sought review of the judgment and order dated 07.12.2021, however, by means of the order dated 01.04.2022, review petition has also been rejected by observing that the order dated 07.12.2021 was passed in equity.

The State Government considering the overall requirements of the doctors in the State of U.P. and condition of medical services took a policy decision which is embodied in the Government Order dated 09.12.2020. It is not that in exercise of our jurisdiction under Article 226 of the Constitution of India the policy decisions are immune from judicial scrutiny or judicial review. In certain circumstances and on well established legal parameters interference in the policy decision of the State Government are very well permissible, however, having observed as above, we are of the opinion that unless and until policy of the State Government contained in the Government Order dated 09.12.2020 was set-aside or held to be unlawful, the direction contained in the judgment and order under appeal passed by learned Single Judge could not have been issued. It is also noticeable at this juncture that the writ petition filed by the respondents was not filed seeking a simple direction to be issued to the State authorities to grant them ''No Objection' for making application for Senior-Residentship; rather the said prayer was coupled with the prayer for quashing/setting aside the Government Order dated 09.12.2020. Unless and until first prayer made in the writ petition relating to quashing the Government Order dated 09.12.2020 is granted, in our considered opinion, the direction as prayed for by the respondents in prayer no.2 could not be granted.

In the aforesaid view of the matter, the special appeal is allowed and the judgment and order dated 07.12.2021 passed by learned Single Judge in Writ Petition No.28403 (S/S) of 2021 and the order dated 01.04.2022 passed in Civil Misc Review Application No.81 of 2022 are hereby quashed.

The writ petition is restored to the board of learned Single Judge. We request learned Single Judge to consider and decide the said writ petition as early as possible.

Order Date :- 3.8.2022

Renu/-