State Of U.P. Thru. Addl. Chief ... vs Dr. Virshesh Mishra And Others
2023 Latest Caselaw 6749 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVED
 
Court No. - 2
 

 
1.	Case :- SPECIAL APPEAL DEFECTIVE No. - 227 of 2022
 
	Appellant :- State Of U.P. Thru. Addl. Chief Secy., 	Ayurvedic Yoga, U.P. Govt. Lko. And 	Others
 
	Respondent :- Dr. Virshesh Mishra And Others
 
	Counsel for Appellant :- C.S.C.
 
	Counsel for Respondent :- Rakesh Kumar Modanwal,Km. 	Saakshi Pandey,Rakesh Kumar Modanwal
 
CONNECTED WITH
 
2.	Case :- SPECIAL APPEAL DEFECTIVE No. - 228 of 2022
 
	Appellant :- State Of U.P. Thru. Its Addl. Chief Secy. Ayush 	Govt. U.P. Civil Secrt. Lko. And 	Others
 
	Respondent :- Manju Verma And Others
 
	Counsel for Appellant :- C.S.C.
 
	Counsel for Respondent :- Lalta Prasad Misra
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Saurabh Srivastava,J.

1. Having heard learned counsel for the parties and perused the contents of the affidavit filed in support of the application seeking condonation of delay in filing these special appeals, we are satisfied that delay has sufficiently been explained.

2. Accordingly, applications moved in both the special appeals with the prayer for condonation of delay are allowed and delay in filing the special appeals is condoned.

3. Heard learned State Counsel representing the State authorities-appellants, Shri Rakesh Kumar Modanwal, learned counsel representing the respondents in Special Appeal (D) No.227 of 2022 and Dr. L. P. Misra, learned counsel appearing for the respondents in Special Appeal (D) No.228 of 2022.

4. We have also perused the records available before us on these two special appeals.

5. Under challenge in these special appeals filed under Chapter VIII Rule 5 of the Rules of the Court is the judgment and order dated 31.03.2022 passed in a bunch of the writ petitions, leading Writ Petition being Writ-A No.12236 of 2021. Learned Single Judge while allowing the writ petitions has quashed the orders discharging the services of the respondents-petitioners with a further direction that they shall be allowed to work on their respective posts in their respective colleges in terms of the Government Order dated 27.10.2017. It has also been provided by the learned Single Judge that in case any complaint is made or received against working of the respondents-petitioners, the State authorities shall be at liberty to examine/inquire the said complaint in accordance with law and pass order thereon. Learned Single Judge while allowing the writ petitions has also observed that the State authorities shall also be at liberty to adjudge the performance of each respondent-petitioner on their respective post before renewing their contract of appointment after expiry of their contract period and shall pass appropriate orders in accordance with law.

6. Learned State Counsel representing the State authorities-appellants has vehemently submitted that the learned Single Judge has clearly erred in law in issuing a direction to the State authorities to allow the employees engaged on contractual basis to continue to work on their respective posts even after expiry of their term of contract of appointment. It has further been argued by the learned counsel for the State authorities-appellants that in the matter of contractual appointment, terms of appointment are governed by the conditions stipulated in the contract, however, learned Single Judge did not appreciate the said legal position while observing that conduct of the State has to be non-arbitrary and unless strong reasons are available the State authorities cannot replace an adhoc employee with another adhoc employee.

7. Learned counsel representing the State authorities-appellants has further submitted that the Government Order dated 27.10.2017 was issued modifying the conditions of engagement/appointment of the teaching staff and further that in the said Government Order one of the clauses provided that so far as the appointment of para medical/non-paramedical staff in the Government Homeopathic Colleges is concerned, that may be made on contract basis as per prescribed procedure for selection.

8. It has further been argued that the Government Order dated 27.10.2017 does not provide procedure or terms and conditions of appointment of para medical/non-para medical staff and further that this Government Order also does not extend the procedure for appointment of teaching staff to the appointment of para medical/non-para medical staff. It has, thus, been vehemently argued on behalf of the appellants that being contractual employees the respondents did not have any right to continue in service and that as per the requirement of the Government Order, the term of appointment of the respondents was renewed for a further period of 11 months and on expiry of 11 months period it was not found appropriate to engage them and accordingly directions were issued for no further renewal of term of employment of the respondents. It has further been argued by the learned counsel appearing for the State authorities-appellants that the learned Single Judge has erred in extending the benefit of the judgment and order passed by this Court in Writ Petition No.14731 (S/S) of 2020, Dr. Narendra Singh Sengar and others vs. State of U.P. and others, for the reason that the facts of the said case were different. It has, thus, been vehemently submitted that on the aforesaid grounds the judgment of the learned Single Judge which is under appeal herein is liable to be set aside.

9. Opposing the prayers made by the learned State Counsel representing the State authorities-appellants, learned counsel representing the respondents have submitted that the matter relating to appointment of the respondents against para medical and non-para medical posts was made in circumstances similar to the circumstances in which appointment of the teaching staff was also made in the State Homeopathic Medical Colleges and as such benefit of the judgment and order in the case of Dr. Narendra Singh Sengar and others (supra) is available to the respondents as well. It has also been pointed out by the respondents that the State authorities cannot be permitted to treat the respondents differently inasmuch as in the case of Dr. Narendra Singh Sengar and others (supra) the judgment passed by this Court by the learned Single Judge has been complied with whereas in the present case the judgment rendered by the learned Single Judge is being assailed for which there does not appear to be any justification. It has further been urged that merely because in the case of Dr. Narendra Singh Sengar and others (supra) the appointees were holding the teaching pots in the Government Homeopathic Medical Colleges in the State of Uttar Pradesh whereas in the present case the respondents were appointed against paramedical and non-paramedical posts in the same Government Homeopathic Medical Colleges, they cannot be differentiated for the reason that appointment of the respondents was made in the like manner and the same is governed by the same Government Order.

10. On behalf of the respondents, it has also been argued that discharge of the respondents from service was against the terms of appointment and the terms of advertisement and hence learned Single Judge has rightly set aside the discharge orders. Further submission in this regard is that the submission on the part of the appellants-State authorities that the Government Order dated 27.10.2017 is not applicable to the paramedical and non-paramedical staff is based on complete misreading of the said Government Order.

11. Based on the aforesaid submissions, it has thus, been prayed on behalf of the respondents that the special appeals are liable to be dismissed.

12. We have given our anxious consideration to the rival submissions made by the learned counsel representing the respective parties.

13. Before delving into the submissions advanced on behalf of the parties, we find it appropriate to note certain facts which have given rise to the present litigation.

14. Under challenge in the writ petitions filed by the respondents was the action on the part of the State authorities whereby the respondents were discharged from service. At this juncture itself it will be relevant to note that all the respondents were appointed on different paramedical and non-paramedical posts in the State run Homeopathic Medical Colleges throughout the State of Uttar Pradesh. Further prayer made in the writ petitions was that the State authorities may be directed to reinstate the respondents on their respective posts and allow them to continue to work.

15. From the records available before us it is apparent that faced with paucity of teaching staff in the Government Homeopathic Medical Colleges a decision was taken by the State Government to fill up the vacant posts of teaching staff in the Medical Homeopathic Colleges and Hospitals on contractual basis from amongst those who were holding M.D. Degree. The appointment of teaching staff in this backdrop was decided to be made as guest lecturers and accordingly a Government Order dated 28.05.2015 was issued which inter alia noted that on account of changed standards as evolved by the Central Council of Homeopathy, Government of India (CCH), it had become inevitable to the post the teachers in Government Homeopathic Medical Colleges and Hospitals as guest lecturers.

16. The Government Order dated 28.05.2015 provided that appointment against teaching posts shall be made on contractual basis from amongst the teachers, who retired from State Homeopathic Medical Colleges and Hospitals situated outside the State of Uttar Pradesh. It also provided that such medical officers working in the State Medical Colleges who are having M.D. Degree to their credit, shall also be appointed on the post of lecturers. The Government Order dated 28.05.2015 also made a provision for selection, after advertisement, through the selection committee.

17. Another Government Order was issued on 27.10.2017 on the subject of filling up the teaching and other posts in the State Homeopathic Medical Colleges on honorarium basis as guest lecturer. It is to be noticed at this juncture itself that the subject of the Government Order dated 27.10.2017 as mentioned therein is not confined to filling up the teaching posts; rather it is in relation to other posts as well. The subject as occurs in the Government Order dated 27.10.2017 is quoted hereunder:

"izns'k ds jktdh; gksE;ksiSfFkd esfMdy dkyst esa f'k{kdksa ds fjDr inksa dks lafonk ds vk/kkj ij Hkjs [email protected],e0Mh0 /kkjd gksE;ksiSfFkd fpfdRlkf/kdkjh dks jktdh; gksE;ksiSfFkd esfMdy dkystksa esa fjDr f'k{kdksa o vU; ds inksa ij rSukr fd;s tkus ,oa ekuns; ds :i esa vfrfFk izoDrk j[ks tkus esa lEcU/k esaA"

18. Thus, occurrence of the phrase "jktdh; gksE;ksiSfFkd esfMdy dkystksa esa fjDr f'k{kdksa o vU; inksa" clearly shows that the subject matter of the Government Order dated 27.10.2017 was not confined to filling up the teaching posts alone, rather it extended to filling up of other posts as well.

19. The Government Order dated 27.10.2017 makes a mention of the earlier Government Order dated 28.05.2015, however, it provides that because of certain conditions mentioned in the said Government Order dated 28.05.2015 the shortage of teachers could not be removed. It also notices that vacancies in the State Homeopathic Medical Colleges will result in non-fulfillment of the object of making available medical services to the people at large.

20. In the aforesaid background, the Government Order dated 27.10.2017 embodies certain decisions of the State Government according to which the appointment on contractual basis of the teachers/officers shall be made till they attain the age of 65 years or till regularly selected employees are made available from the Public Service Commission. This Government Order further provides that those teachers, who are interested in being appointed on contractual basis, shall be provided the benefit of their continuance till they attain the age of 65 years or till regularly selected candidates are made available from the Public Service Commission. It also provides that in addition to consideration of appointment on contractual basis from amongst the teachers who are working in Government Medical Colleges outside the State of Uttar Pradesh, those who are working in private Medical Homeopathic Colleges, shall also be considered. The Government Order clearly states that since the appointments are to be made on contractual basis with a view to fulfill the minimum standards prescribed by the Central Council of Homeopathy, as such eligibility for appointment shall be the same as has been determined by the Central Council of Homeopathic (CCH). In the said Government Order apart from making mention of the teaching posts various non-teaching posts are also mentioned. It is worth noticeable that clause 4(;) of the Government Order dated 27.10.2017 clearly provides that appointment against paramedical and non-paramedical posts in all State Homeopathic Medical Colleges shall be made by the Director of Homeopathy in a transparent manner after publishing an advertisement and conducting the selection process.

21. The Government Order dated 27.10.2017 contains an enclosure along with it which is in the form of a table and the said table contains not only the vacant teaching posts but also the vacant paramedical and non-paramedical posts.

22. In terms of the Government Order dated 27.10.2017 an advertisement was issued on 15.12.2017 by the Director, Homeopathy for filling up various teaching posts. One of the conditions advertised in the advertisement dated 15.12.2017 for filling up the teaching post was that contractual teachers to be appointed pursuant to the said advertisement shall continue to work till regularly selected candidate is made available by the U.P. Public Service Commission or till one year or till 65 years of age whichever is earlier. A separate advertisement on the same date i.e. on 15.12.2017 was issued by the Director, Homeopathy, U.P. for filling up the vacancies against paramedical and non-paramedical posts (non-teaching posts). In the said advertisement the condition mentioned was that such contractual appointees shall continue to work till availability of regularly selected candidates by the Subordinate Services Selection Board or under any other arrangement made by the State Government or till one year or till 65 years of age whichever is earlier. The respondents applied, as per their qualification, seeking their appointment against various paramedical and non-paramedical posts pursuant to the aforesaid advertisement dated 15.12.2017 and having succeeded in the selection held by the State authorities they were appointed vide appointment orders issued by the authority concerned. One such appointment letter dated 03.08.2018 in respect of one of the respondents herein, Kumari Manju Verma may be referred to which is on record, according to which she was appointed on contractual basis and the order stipulated that she can be continued to work till the maximum age of 65 years. The appointment letter also stipulates that ordinarily within the maximum age of limit of 65 years her appointment shall be for a period of one year but she shall be discharged from service on availability of regularly selected employee by the U.P. Subordinate Services Selection Commission. It also stipulates that after satisfactory service of one year her term of appointment can be extended. The appointment letter further clearly contains a recital that appointment was made in pursuance of Government Order dated 27.10.2017.

23. On being appointed, the respondents continued to work, however, some meeting of the officials of the Department of AYUSH appears to have been held on 26.03.2019 through Video Conferencing in which it is said that it was decided that in future without making a budgetary provision no appointment be made through outsourcing and that contractual appointment shall be made for 11 months and in any circumstance such employee shall not be paid the salary for 12 months in a year. A letter was issued on 29.03.2019 by the Director which was addressed to all Principals of State Homeopathic Medical Colleges, U.P. and also to all District Homeopathic Medical Officers throughout the State of Uttar Pradesh enclosing therewith the minutes of meeting held through Video Conferencing on 26.03.2019. Thereafter another letter was issued by the Director, Homeopathy, U.P. on 20.06.2019 noticing therein that the term of the appointment of teaching and paramedical/non-paramedical staff is coming to an end soon. The said letter further instructed that once the term of appointment of contractual teaching and non-teaching staff comes to an end, they should be discharged from their services till orders are issued for their re-appointment on contractual basis.

24. The Director of Homeopathy, U.P. again issued an order contained in his letter dated 06.07.2019 stating therein that the circumstances under which the paramedical and non-paramedical as also the teaching staff were earlier appointed on contractual basis still exists and as such on completion of the term of the contract of these employees their services be renewed for a period of 11 months or till availability of regularly selected staff whichever is earlier. In terms of the aforesaid decision though the terms of contractual appointment of the respondents were extended, however, all the respondents have been discharged from service thereafter on different dates between July, 2020 and October, 2020. It is this action on the part of the appellants-State authorities which became the subject matter of challenge before the learned Single Judge in the bunch of writ petitions which has been decided by the learned Single Judge by the judgment and order dated 31.03.2022 which is under challenge before us in these special appeals.

25. It is to be noticed that like the respondents in the present case, services of the teaching staff, who were appointed on contractual basis pursuant to the advertisement dated 15.12.2017 which was issued in furtherance of the Government Order dated 27.10.2017, were also discharged which became the subject matter of challenge before this Court in a bunch of writ petitions, leading writ petition being writ petition no.14731 (S/S) of 2020, Dr. Narendra Singh Sengar and others vs. State of U.P. and others. The said writ petitions have been allowed and the orders discharging the services of teaching staff have been quashed by the learned Single Judge by means of the judgment and order dated 09.12.2020 and teaching staff by the said judgment and order passed by the learned Single has been ordered to be allowed to work on their respective posts as per the Government Orders dated 28.05.2015 and 27.10.2017.

26. It is very relevant to note at this juncture that the State Government did not challenge the aforesaid judgment and order dated 09.12.2020 passed by the learned Single Judge in the case of Dr. Narendra Singh Sengar and others (supra); rather issued an office memorandum dated 18.02.2021 whereby the said judgment was complied with and it was provided that their services shall be continued till the availability of regularly selected candidates from U.P. Public Service Commission or till one year whichever is earlier.

27. If we closely scrutinize the facts and circumstances of the present case as noted above, what we find is that the situation which had occasioned appointments of the teaching staff was the same which had occasioned appointments in the State Homeopathic Medical Colleges against the paramedical and non-paramedical posts. It is to be noticed that appointment of the teaching staff on contractual basis was made in pursuance and in terms of the Government Order dated 27.10.2017. The appointment of the respondents in this case against the paramedical and non-paramedical posts has also been made in pursuance and in terms of the same Government Order i.e. Government Order dated 27.10.2017.

28. Though the Government Order dated 27.10.2017 appears to have been issued for the reason that on the terms as stipulated in the earlier Government Order dated 28.05.2015 the vacancies of teaching staff could not be filled in, as such the terms of appointment were modified, however, it is very significant to notice that the Government Order dated 27.10.2017 was issued not only in respect of making contractual appointment of teaching staff but also in respect of appointment of paramedical and non-paramedical staff as well. The Government Order dated 28.05.2015 does not contain any stipulation so far as the appointment of non-teaching staff (paramedical/non-paramedical ) is concerned, however, the Government Order dated 27.10.2017 clearly stipulates the terms and conditions on which appointment was to be made both against the teaching posts as also against the paramedical and non-paramedical posts in the Government Homeopathic Medical Colleges.

29. The subject on which the Government Order dated 27.10.2017 was issued has already been quoted above, wherein it is clearly mentioned that the said Government Order was issued in respect of making appointments against the vacancies of teaching posts and other posts. Clause 4 (;) of the said Government Order dated 27.10.2017 clearly mentions filling up of paramedical and non-paramedical posts in the State of Homeopathic Medical Colleges. The said Government Order dated 27.10.2017 also contains an enclosure (appendix) which contains a table and the said table depicts not only the teaching posts but also the posts of paramedical and non-paramedical staff.

30. Pursuant to the Government Order dated 27.10.2017 teaching staff was appointed on contract as is the case of the respondents of these special appeals. The manner of appointment and the terms and conditions, on which the teaching staff was appointed and the paramedical and non-paramedical staff was appointed, are the same. Both these groups of contractual appointees were subjected to a selection pursuant to two different advertisements issued on the same date i.e. 15.12.2017, one for the teaching staff and the other for paramedical and non-paramedical staff. The terms and conditions of both these advertisements are the same and there exists a rationale for having the same terms and conditions of the advertisements and reason for the same stipulation of terms and conditions of appointment in these two advertisements is that both the advertisements were issued pursuant to the decision of the State Government contained in the Government Order dated 27.10.2017.

31. For the reasons aforesaid, we have no doubt in our mind that the appointment of the respondents in these special appeals were made pursuant to the same Government Order dated 27.10.2017 in pursuance of which the appointment of teaching staff was made in the State Homeopathic Medical Colleges. We are also of the considered opinion, as is evident from the record available before us, that the process of appointment and stipulation in the initial appointment order, so far as the contractual teaching staff and contractual paramedical and non-paramedical staff are concerned , are the same and hence it is not open to the appellants-State authorities to give different treatment to the paramedical and non-paramedical staff as compared to teaching staff inasmuch as that the judgment rendered by the learned Single Judge in the case of teaching staff whereby their orders of discharge have been quashed, has been complied with whereas in the case of paramedical and non-paramedical staff, the similar judgment is being challenged in these special appeals.

32. Learned State Counsel representing the State authorities-appellants has utterly failed to establish any distinction on any count between the manner and terms of appointment of teaching staff and the manner and terms of appointment of the paramedical and non-paramedical staff in the State run Homeopathic Medical Colleges. There is nothing on record which may persuade us to find that the Government Order dated 27.10.2017 does not govern the contractual appointment of the respondents herein who are paramedical and non-paramedical staff. It is also worthwhile to note that the State Government had taken the decision to fill up teaching and non-teaching posts in the State run Homeopathic Medical Colleges and Hospitals to meet the challenge of standards prescribed by the Central Council of Homeopathy and such condition still exists which makes it clear that the State run Homeopathic Medical Colleges are still in need of not only the teaching staff but also the paramedical and non-paramedical staff.

33. The aforesaid facts have been noticed by the learned Single Judge who while passing the judgment and order under challenge before us in these special appeals has arrived at a conclusion regarding continued requirement of the paramedical and non-paramedical staff in the State run Homeopathic Medical Colleges.

34. In view of the facts noticed and reasons given above, we are not persuaded to take any view other than the view taken by the learned Single Judge in his judgment and order dated 31.03.2022 which is under challenge before us in these special appeals.

35. The special appeals are, thus, dismissed.

36. There will, however, be no order as to costs.

 
Order Date :- 2.3.2023  
 
akhilesh/
 

 
(Saurabh Srivastava, J.)      (D. K. Upadhyaya, J.)