Dr. Richa Mishra vs State Of U.P. Thru. Its Addl. Chief ...
2023 Latest Caselaw 10211 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
A.F.R.
 

 
Court No. - 18
 

 
Case :- WRIT - A No. - 2542 of 2023
 

 
Petitioner :- Dr. Richa Mishra
 
Respondent :- State Of U.P. Thru. Its Addl. Chief Secy./ Prin. Secy., Deptt. Of  Medical Edu. Lko. And 5 Others
 
Counsel for Petitioner :- Utsav Mishra
 
Counsel for Respondent :- C.S.C.,Shubham 
 
Tripathi,Vinayak Saxena 
 

 
Hon'ble Alok Mathur, J.

1. Heard Sri Sandeep Dixit, Senior Advocate assisted by Sri Utsav Mishra for the petitioner, Sri S. K. Kalia, Senior Advocate assisted by Sri Shubham Tripathi and the Standing counsel for the respondents.

2. The petitioner has assailed the decision of the respondents to give charge/appointment to respondent No.6 as Head of Department of Microbiology in Sanjay Gandhi Post Graduate Institute of Medical Sciences, Lucknow (hereinafter referred to as the SGPGIMS) and further seeks a direction to the respondents to appoint the petitioner on the said post.

3. It has been submitted by learned counsel for the petitioner that the petitioner was initially appointed as Assistant Professor in Department of Microbiology in SGPGIMS on 24.5.2013 and subsequently she was confirmed on the said post. She was further promoted to the post of Associate Professor in Department of Microbiology under Career Advancement Scheme (CAS) on 28.12.2016 and further promoted to the next higher post of Additional Professor on 16.3.2020 on which she is presently working.

4. It is submitted that SGPGIMS was established by the statute known as Sanjay Gandhi Post Graduate Institute of Medical Sciences Establishment Act, 1983 and with regard to reservation and age relaxation for all the reserved category candidates rules of Government of Uttar Pradesh are applicable. According to sub regulation (3) of rule 40 of First Regulation of 2011 and as per Regulation 53 of First Regulation 2011 the President of the respondent Institute is Chief Secretary of Government of Uttar Pradesh and is the appointing authority of class 1 officers of the SGPGIMS.

5. In pursuance of advertisement No.22/2003-04 which was issued for recruitment of reserved category candidates, respondent No.6 was selected and appointed to the post of Assistant Professor in Department of Microbiology and at the time of filing of the writ petition was holding the post of Additional Professor.

6. Learned counsel for the petitioner has submitted that respondent No.6 who belongs to scheduled tribe category is a native of State of Manipur and had applied under the Scheduled Tribe category. It is stated that respondent No.6 was not eligible for being appointed under reserved category on the post of Assistant Professor in Department of Microbiology. The appointment of respondent no.6 and other persons appointed in pursuance to the advertisement N.22/2003-04 was questioned by certain members of Legislative Council and appointments made thereunder were also duly considered by the State of U.P. and it was held that the candidates who belong to outside the State cannot be given benefit of reservation. However, such candidates are eligible to apply on unreserved vacancies only and, hence, entire matter was placed before the governing body of SGPGIMS for consideration of such appointment.

7. The matter was also raised before this Hon'ble Court in writ petition No.1472 (S/B) of 2007 (Dr. Rishi Setti Vs. State of U.P. and others) and the said matter is still pending consideration. The issue was also raised at various other forums including Uttar Pradesh State Commission for Backward Classes and a meeting was held on 3.3.2009 under the Chairmanship of Secretary, State of U.P. where it was decided that such posts which have been filled-up in violation of reservation policy be declared as ex-cadre posts, and entire aforesaid exercise culminated in passing of the Government Order dated 15.10.2010 issued by Principal Secretary, Medical Education, State of U.P. whereby the State Government took decision to declare the 8 posts occupied by such persons belonging to outside the State of U.P. (including respondent No.6), who had been extended the benefit of reservation policy and had been appointed on the reserved category posts meant for candidates belonging to scheduled castes, scheduled tribe and other backward classes having domicile of U.P., be declared as ex-cadre posts. In compliance with the aforesaid decision, the respondent institute was directed to take necessary action in compliance thereof.

8. In compliance of the aforesaid Government Order dated 15.10.2010 an office order dated 15.9.2016 was issued by Director, SGPGIMS where it was provided that the posts occupied by the candidates belonging to reserved category candidates of outside the State be declared as having been appointed on ex-cadre posts. It was further provided that they shall not be eligible for holding the posts of Head of Department or any administrative post or any responsible post.

9. Being aggrieved of the Government order dated 15.10.2010 issued by Principal Secretary, Medical Education, State of U.P. as well as office order dated 15.9.2016 issued by Director, SGPGIMS respondent No.6 approached the Hon'ble Visitor assailing the said orders. Apart from the fact that they were never given opportunity of hearing prior to passing of the said orders also that there was no such condition laid down in advertisement No.22/2003-04 about requirement of domicile of State of U.P. or that domicile of other State would not be eligible and regarding that, both the orders were issued by incompetent authorities in as much as the Director and the Principal Secretary were not the appointing authorities as according to Section 11 of the Act, the Chief Secretary of U.P. is the President of SGPGIMS and Chairman of governing body and according to Regulation 2 President is the appointing authority for Assistant Professors.

10. The representation of respondent No.6 was duly considered and decided by the Visitor vide order dated 29.1.2019 setting aside the order of Director, SGPGIMS dated 15.9.2016 but no interference was shown in Government Order dated 19.10.2010 as the same was beyond the competence of the Visitor to set it aside. It has further been submitted that the order dated 15.10.2010 was also challenged by one Dr. Narayan Prasad, who was similarly situated and selected along with the respondent no.6 and who had also approached the Visitor and an order was passed in his favour on 6th April, 2018. The Government order dated 15/10/2010 was challenged before this Court in writ petition No.6785 of 2018 (S/S) by Dr. Narayan Prasad, as in his case also the Hon'ble Visitor had set aside only the order of Director SGPGIMS and 15.09.2016 and not the Government order dated 15/10/2010. The Single Judge of this Court vide judgment and order dated 09.05.2019 allowed the writ petition and set aside the Government order dated 15.10.2010 and 9.8.2018 and directed the respondents to provide all consequential benefits to the petitioner and that he will not be treated in ex-cadre service and will not ignore the petitioner in providing the benefits of seniority in service and other benefits and hold administrative post.

11. Sri Sandeep Dixit, learned counsel for the petitioner has urged that the order of Single Judge is not liable to be followed in the present case in as much as ex-facie rules of reservation applicable to SGPGIMS were not followed and respondent No.6 could not have been appointed against reserved vacancies of scheduled caste/Scheduled Tribe and, therefore prayed that the case of the petitioner may be considered ignoring the aforesaid judgment and order or in alternative declare the same as per incuriam as the same has been passed in ignorance of the well settled legal principles. He submits that the petitioner being next senior most faculty member is entitled to be appointed as Head of Department and may be given charge of the said post.

12. Sri S. K. Kalia, Senior Advocate has vehemently opposed the writ petition. He submits that the State Government considering various allegations with regard to appointment of the respondent no.6 and other similarly situated persons passed the Government Order dated 15.10.2010 declaring the respondent No.6 and 7 others to be holding ex-cadre post. Subsequently, the SGPGIMS has issued the order dated 15.10.2016 in compliance of the government order dated 15.10.2010. The respondent no.6 came to know of the order dated 15.09.2016 declaring the post held by the petitioners to be ex-cadre post and had challenged the said order before Hon'ble Visitor, who after a detailed order dated 29.1.2010 allowed claim of the respondent no.6 and set aside the order dated 15.09.2016 passed by Director, SGPGIMS. He has further submitted that the Government Order dated 15.10.2010 was also challenged before this Hon'ble Court by similarly situated persons and the same has also been quashed by this Court in writ petition No.6785 of 2018 (Narayan Prasad Vs. State of U.P. and others) by means of the judgment and order dated 9.5.2019. It is stated that even the Special Appeal being Special Appeal No.254 of 2019 is pending consideration before Division Bench of this Court.

13. It is stated that at present the entire controversy has been laid to rest, and the Government order dated 15.10.2010 as well as the order of Director, SGPGIMS declaring the respondent no.6 to be holding ex-cadre post have been set aside, with the result that respondent no.6 is deemed to be holding the post within the cadre and being the senior most faculty member is duly entitled to be appointed as Head of Department in compliance of the decision taken by the respondents in this regard. This court was also informed that respondent No.6 has already taken over the head of Department Microbiology on 29.03.2023 and accordingly prayed for dismissal of the writ petition.

14. I have heard the counsel of the parties and perused the record. The petitioner by means of present writ petition seeking to lay claim of the Post of Head of Department Microbiology, SGPGIMS. In order to take over as Head of Department of Microbiology, he has also prayed that respondent No. 6 be declared to be holding ex-cadre post and hence not eligible to be appointed as Head of Department.

15. The appointment of respondent No.6 and other persons who were recruited in pursuance to the advertisement No. 22/2003-2004 were subjected to scrutiny at the State Government level, where after due consideration Government Order dated 15.10.2010 was issued. The State Government considered the fact that 8 of the persons recruited in the aforesaid recruitment were not domicile of the Uttar Pradesh and have been given the benefit of Reservation Act, 1994. After consultation with the Department of Personnel the said 8 persons so recruited their appointments were protected and were declared as holding ex-cadre post. The consequential order was passed by the Director SGPGIMS on 15/09/2016.

16. The order of the director SGPGIMS was challenged before the Hon'ble Visitor by respondent No.6 by filing a representation dated 05/12/2016 and also by another similarly situated person-Dr Narayan Prasad. The representation of respondent No.6 was allowed on 29/01/2019 and the order of the Director, SGPGIMS dated 15/09/2016 was set aside.

17. The Hon'ble Visitor was persuaded by the fact that the Advertisement No.22/2003- 2004 inviting applications for eligible persons with regard to the Department of Microbiology four posts were advertised which included 1 post for General category, 2 posts were reserved for Scheduled Caste and one for OBC. Respondent No. 6 is a person belonging to Scheduled Tribe and belongs to State of Manipur where Garo tribe is recognized as a Scheduled Tribe. The State government while holding that the respondent No. 6 could not have been granted the benefit of reservation in the category of scheduled tribe on the basis that in Uttar Pradesh Garo tribe is not recognized as a scheduled tribe.

18. In light of the aforesaid facts, the Hon'ble Visitor was of the view that out of the 4 post of Assistant Professors in the Department of Microbiology which were advertised, there was no post which was reserved for Scheduled Tribe, and, therefore, respondent No.6 could have been appointed only against the General category post and the order passed in this regard was not sustainable hence there was clear infirmity in the said order passed by the Director, SGPGIMS, and, therefore, set aside the order dated 15/09/2016.

19. The Government Order dated 15/10/2010 was challenged before this Court in writ petition No. 6785/2018 (SS) which was allowed by means of judgment and order dated 09/05/2019 after considering the following issues:-

a. the appointment of the petitioner was made in the year 2004 and after 12 years had passed since the appointment which was in accordance with law done by a duly constituted selection committee, and relying upon the judgment of the Supreme Court in the case of M.S Mudhol and another vs H.D. Halegkar and others passed in SLP no.16256 of 1992 and Mrs. Rakha Chaturvedi vs University of Rajisthan and others (1993)2 BLJR 854 it was held at the SGPGIMS is bound by principle of estoppels and cannot be allowed to change its stand and take a U-turn. It was also held that the respondents have chosen to acquiesce to the appointment of the petitioner and it would be inequitable to make them suffer for the acts of the respondents.

b. Considering the orders dated 15/10/2010 and 09/08/2018 it was held that it is apparent on the face of it that the petitioner was not afforded any opportunity to file his defense and consequently the order is been passed in violation of principles of natural justice is not sustainable in law.

20. It is on these aforesaid facts that this Court is called upon to decide as to whether a writ can be issued in favour of the petitioner entitling him to take over the charge of the Head of Department of Microbiology. The petitioner can succeed in the present writ petition only when the respondent 6 is declared to be holding an ex-cadre post, and the validity of the Government Order dated 15/10/2010 as well as order dated 15/09/2016 passed by Director, SGPGIMS are upheld, otherwise admittedly respondent no.6 is senior to the petitioner having been appointed in 2004 viz a viz the petitioner who was appointed on 24/05/2013.

21. The Government Order dated 15/10/2010 has already been set aside by this court in writ petitions No. 6785/2018 and 32033 (SS) of 2018. Though the respondent no.6 has not challenged the said Government Order before this Court, but the benefit accruing as a consequence of setting aside of the said Government order cannot be denied to him in the present proceedings, and it cannot be argued that just because the petitioner has not challenged the said order the benefit of the same cannot be granted to him. This aspect of the matter was considered by the Supreme Court in the case of state of Uttar Pradesh and others Vs Arvind Kumar Srivastava and others (2015) 1 SCC 347.

22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under:-

"22.2. However, this principle is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.

22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India [K.C. Sharma v. Union of India, (1997) 6 SCC 721 : 1998 SCC (L&S) 226] ). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.

23. The Government order dated 15/10/2010 was also challenged by Dr Able Lawrance by filing writ petition being writ petition No. 32033(SS) of 2018 which was also allowed in terms of the judgement dated 09/05/2019 passed in writ petition No. 6785 (SS) of 2018.The extension of benefit of the Judgment passed in writ petition No. 6785 (SS) of 2018 even to by Dr Able Lawrance clearly indicates that this Court was of the view that the judgement dated 09/05/2019 applies to all the persons affected by government order dated 15/10/2010, and therefore when the same has been set aside, it covers the case of respondent No.6 also, and it is not necessary for every individual to approach court to seek a similar declaration. This Court is also conscious of the fact that SGPGIMS has itself accepted the verdict of this Court dated 09/05/2019 and prepared a common seniority list for all the professors including the names of persons affected by government order dated 15/10/2010.

24. In the present case as soon as respondent no.6 came to know about the order dated 15/09/2016 he challenged the same before the Hon'ble Visitor, who had set aside the same by order dated 29/01/2019. On the other hand, Government Order dated 15/10/2010 was also set aside by this Court. With regard to the fact as to whether the judgement of this Court would apply or not to respondent no.6, this Court was of the considered view that the judgement of the single judge passed in writ petitions No. 6785/2018 and 32033 (SS) of 2018 would also apply to him as firstly, the order dated 15/10/2010 was a common order with regard to all the 8 persons who were selected in pursuance to the advertisement No. 22/2003-2004, on common ground. The grounds considered by the Hon'ble Single judge of this Court even cover the case of respondent No.6 in as much as no opportunity of hearing was granted before passing of the said order, and more importantly the said order became final and was duly accepted by the government as well as the SGPGIMS. Though a Special Appeal has been filed at the behest of the private individual namely Dr Devendra Gupta being Special Appeal No. 254 of 2019, and subject to the outcome of the said Special Appeal, the issue has become final between the Government and SGPGIMS on one hand and all the 8 persons who were affected by the order dated 15/10/2010 on the other. The SGPGIMS has further in compliance of the judgement dated 29/01/2019 of this Court issued a common seniority list of all the professors of the SGPGIMS which also includes respondent no.6 and others who were affected by the Government Order dated 15/10/2010.

25. Therefore, from the aforesaid facts the dispute pertaining to the appointment of respondent No. 6 and other similarly situated persons has been decided as both the orders namely 15/10/2010 and 15/09/2009 are no longer in existence. The Hon'ble Visitor as well as this Court set aside the orders holding the respondent No. 6 and other similarly situated persons as having been appointed on ex-cadre posts. The respondents have also accepted the verdict of this Court as well as the order passed by the Visitor, and subject to the decision in the Special Appeal which is pending consideration before this Court, the issue is no longer alive issue, and the petitioner cannot be permitted to agitate and raise the said issue for the 1st time after the lapse of 19 years from the date of the appointment of respondent no. 6, or after the substantial length of time after his / her own appointment which was made in the year 2013.

26. Considering the submission of the counsel of the petitioner that the judgement dated 29/01/2019 passed in writ petition No. 6785/2018 be declared per-incuriam , this Court is of the considered view that the said judgement cannot be subjected to review or its validity questioned in the present writ petition. Another reason for not accepting the contention on the petitioner is the fact that the Government Order dated 15/10/2010 is not under challenge in the present proceedings, and hence there is no occasion for this Court to test the validity of the said Government order or the precedential value of a previous judgment quashing the said Government order.

27. Had the validity of the Government order dated 15/10/2010 been under challenge in the present writ petition, then only this Court would have an occasion to consider various grounds raised and legal provisions in its support, to consider its validity, but the said question does not arise in the present case in absence of challenge to the same. A Bench of any court is bound to follow the decision of another coordinate Bench of equal strength to maintain judicial propriety. The judgement of the Single Judge can be set aside only by a Division Bench in special appeal or by the Supreme Court in appeal against the said order and accordingly the arguments of the petitioner in this regard are rejected.

28. This Court is also of the considered view that the petitioner has never assailed the order of the Hon'ble Visitor or the judgement of this Court dated 19/05/2019 and, therefore, in absence of the challenge to the same, relief as prayed cannot be granted to the petitioner. In any view of the matter when the order of the Hon'ble Visitor is still holding field and has not even been subjected to any challenge before any forum, there is no reason to deny respondent No.6 the benefit of the said order. It is for the same reason that this Court is not going into the detailed submissions made by counsel for the petitioner with regard to the applicability of U.P. Public Servants (Reservation for Scheduled Castes, Scheduled Tribes and Other Backwards Classes) Act, 1994 while assailing the appointment of respondent No. 6, apart from the fact that a Special Appeal assailing the order of Hon'ble Single Judge is pending consideration, where all these arguments may be considered.

29. Another reason for not interfering with the decision of the SGPGIMS in appointing respondent No. 6 as Head of Department (Microbiology) is that the dispute regarding his appointment and selection was under consideration at various levels for the last 19 years, and such dispute cannot be allowed to continue endlessly, and a quietus has to be given to the dispute at some stage. Permitting the petitioner to continue to agitate the dispute is neither in public interest nor in the interest of SGPGIMS nor the teaching faculty. The petitioner was aware of this situation since the date he joined the Department of Microbiology but chose to remain silent and only when the issue pertaining to appointment on the post of Head of Department (Microbiology) has gain momentum, he has chosen to stake his claim. Had he been serious with regard to the challenge of appointment of respondent no. 6 as an Assistant Professor, he could have done so within a reasonable period of time after his appointment in 2013. He having remained a silent spectator, will be deemed to have acquiesced to the order of Hon'ble Visitor as well as Judgment of this Court dated 09/05/2019 and, hence, cannot be permitted to agitate this dispute at his convenience when the post of Head of Department is about to fall vacant.

30. This Court has also been informed that respondent no. 6 has already taken over as Head of Department of Microbiology.

31. For the aforesaid reasons, this Court is not inclined to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India in favour of the petitioner, and subject to the decision of the Division Bench in Special Appeal No. 254 of 2019, the writ petition is dismissed.

(Alok Mathur, J.)

Dated:-07.04.2023.

RKM