Allahabad High Court
Dr.Sharad Johri vs State Of U.P. Through Prin.Secy. ... on 3 January, 2023
Bench: Ramesh Sinha, Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 1
Case :- SPECIAL APPEAL No. - 98 of 2020
Appellant :- Dr.Sharad Johri
Respondent :- State Of U.P. Through Prin.Secy. Medical And Health And Others
Counsel for Appellant :- Subhash Vidyarthi,Shishir Jain
Counsel for Respondent :- C.S.C.,Ashutosh Shukla,Atul Kumar Singh,Nishi Chaudhary,Rakesh Kumar Chaudhary
Hon'ble Ramesh Sinha,J.
Hon'ble Manish Kumar,J.
1. Heard Sri Shishir Jain, learned counsel for the petitioner, learned Standing Counsel for the State and Sri Rakesh Kumar Chaudhary, learned counsel for respondent nos. 3 to 20.
2. The present Special Appeal has been preferred by the appellant challenging the judgment/order dated 12.02.2020 passed in W.P. No. 34303 (S/S) of 2019 (Dr. Virendra Kumar and 17 Ors. vs. State of U.P. Thru Prin. Secy Ayush Deptt. Lucknow & Anr.)
3. Learned counsel for the appellant has submitted that the appellant/petitioner had earlier approached this Court by filing a W.P. No. 30102 (S/S) of 2019 challenging the legality and validity of non-inclusion of the petitioner in the select list prepared by the Uttar Pradesh Public Service Commission rejecting the petitioner's representation against non-inclusion of his name in the aforesaid select list. The prayer made in the writ petition is quoted hereinbelow:-
"I. Writ, order or direction in the nature of Certiorari may kindly be issued quashing the recommendations for promotion of Readers to the posts of Professors in Government Ayurvedic Colleges in Uttar Pradesh made by opposite party no. 2 Uttar Pradesh Public Service Commission in its meeting held on 20.07.2019 as also the order dated 12.09.2019 passed by the opposite party no. 2 rejecting the petitioner's representation made in this regard.
II. A Writ, Order or direction in the nature of Mandamus may kindly be issued commanding the opposite parties no. 1 and 2 to make promotions of Readers to the posts of Professors in Government Ayurvedic Colleges in Uttar Pradesh strictly in accordance with Rule 16 of the Uttar Pradesh Rajya Ayurvedic aur Unani Mahavidyalaya Adhyapakon Ki Sewa Niyamawali, 1990 on the basis of seniority subject to rejection of unfit, considering the eligibility of the candidates on the date of selection and not on 01.07.2016 or on any other date prior to the date of selection."
4. In the said writ petition, an interim order was granted by this Court vide its judgment/order dated 01.11.2019 restraining the respondents from making any appointment on the post of Professor in Government Ayurvedic College, U.P. in furtherance of selection under challenge.
5. It is further submitted that one Dr. Virendra Kumar and 17 Ors. had approached this Court by filing a W.P. No. 34303 (SS) of 2019 with the following prayer:-
"(i) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to forthwith implement the recommendation of the Departmental Promotion Committee dated 20.07.2019 and letter issued on 25.07.2019, annexed as Annexure No.1 to this writ petition, and issue order of promotion to the post of Professor in respect of petitioners.
(ii) Issue a writ, order or direction in the nature of certiorari quashing the advertisement dated 20.11.2019 issued by the opposite party No.2, annexed as Annexure No.7 to this writ petition."
6. The said writ petition was finally decided by this Court vide its judgment/order dated 12.02.2020 and directed to implement the recommendation of the D.P.C. dated 20.07.2019 and the letter dated 25.07.2019 which is contained in Annexure no. 1 to the writ petition, so far it relates to the petitioners for promotion on the post of Professor against which the present Special Appeal has been preferred.
7. Learned counsel for the appellant has submitted that the judgment/order which is impugned in the present Special Appeal is against the settled proposition of law as decided by the Hon'ble Supreme Court in the case of Farhd K. Wadia vs. Union of India and Ors. [(2009) 2 SCC 442] wherein it has been held that if any modification or clarification is required then the same has to be made in the earlier petition preferred not by filing a second writ petition. It is further submitted that the cause of action as per the respondents arose due to the interim order passed in the case of the appellant.
8. On the other hand, learned counsel for the respondents have submitted that the petitioner is a Reader in the Internal Medicine Department whereas the respondents were serving in other Departments. The seniority and the consideration for promotion on the next higher post i.e. Professor is Department wise and there is no seniority list in all the departments of U.P. The seniority of the petitioner and the respondents are as per their services in their respective departments so, the promotion of the respondents would not affect the promotion of the petitioner in any manner.
9. After hearing learned counsel for the parties and going through the record of the case, the position which emerges out in the present case is that the appellant admittedly belongs to the Internal Medicine Department and his promotion is to be considered amongst the Reader in the Internal Medicine Department as the seniority of the Readers are department wise not a combined seniority list of all the departments in the State of U.P. The promotion is to be made amongst the Readers in the department on the post of Professor in that particular department.
10. The judgment cited by learned counsel for the appellant is not applicable on the facts of the present case as the judgment of the Hon'ble Supreme Court in the case of Farhd K. Wadia (supra) is on the point where the first PIL was filed against the noise pollution due to the use of loudspeakers in the Mumbai City. The High Court had granted stay order with providing for certain conditions for granting permission for use of loudspeakers. The second PIL was filed by a person who had taken some Rang Bhawan for a musical concert on rejection of his application for permission which was rejected by the authorities. The High Court at Mumbai in the second PIL had passed an interim order which is contrary to the earlier order passed in the first PIL. The facts are different in the present case in as much as the interest of Readers for promotion to the posts of Professors in other departments i.e. other than the department of the petitioner i.e. Internal Medicine was not involved in the earlier writ petition.
11. It is also revealed from the writ petition filed by the appellant that the appellant/petitioner was aggrieved by the inclusion of the names of the Doctors of Internal Medicine Department as the names of some of the Doctors do not find place in the appointment list as well as on the ground of seniority amongst the Readers in the Internal Medicine Department. The appellant/petitioner was not aggrieved by the consideration of promotion of the respondents who are Readers in the other departments and the respondents were also not made party in the writ petition and there is no conflict between the interest of petiitioner/appellant and the respondents.
12. In view of the discussion made above, the present Special Appeal is devoid of merits and is accordingly dismissed.
(Manish Kumar, J.) (Ramesh Sinha, J.)
Order Date :- 3.1.2023
Nitesh
