State Of U.P. Thru. Prin. Secy. Deptt. Of ... vs Dr. Shiva Kant Pandey And Another
2025 Latest Caselaw 10859 ALL

Allahabad High Court

State Of U.P. Thru. Prin. Secy. Deptt. Of ... vs Dr. Shiva Kant Pandey And Another on 19 September, 2025

Author: Rajan Roy

Bench: Rajan Roy

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2025:AHC-LKO:58057-DB
 
 
 
 
 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
LUCKNOW 
 
SPECIAL APPEAL DEFECTIVE No. - 529 of 2024 
 
 
 
     
 
   State Of U.P. Thru. Prin. Secy. Deptt. Of Ayush And 2 Others    
 
  .....Appellant(s)   
 
 Versus  
 
   Dr. Shiva Kant Pandey And Another    
 
  .....Respondent(s)     
 
 
 
     
 
   
 
  
 
Counsel for Appellant(s)   
 
:   
 
C.S.C.   
 
  
 
Counsel for Respondent(s)   
 
:   
 
Ashok Kumar Mishra   
 
     
 
 Court No. - 1
 
 
 
 
 
     
 
 HON'BLE RAJAN ROY, J.  

HON'BLE PRASHANT KUMAR, J.

Order on Delay Condonation Application

1. Heard.

2. Cause shown is sufficient; delay in filing the appeal is condoned.

Order on Special Appeal

1. Heard Sri Tushar Verma, learned counsel for the appellants, and Sri Ashok Kumar Mishra, learned counsel for respondent no.1.

2. This is an appeal by the State against the judgment and order dated 19.02.2024. The facts of the case, in brief, are that respondent no.1 was appointed as a part-time medical officer in the State of U.P. on 03.01.1986. A Government Order dated 01.10.1990 was issued for ad hoc appointment of such part-time medical officers prescribing a cut-off date, which was initially 17.05.1990 but was subsequently modified to 17.07.1990. Since the respondent no.1 was covered by the said Government Order, he was appointed on an ad hoc basis on 28.02.1992

3. However, according to the appellant?s counsel, when he underwent medical examination in terms of the said appointment letter, he was not found fit as there was some defect in his eyes. The services of respondent no.1, along with others who had been appointed on an ad hoc basis as aforesaid, were terminated vide order dated 21.05.1992. A copy of the said order, though not filed, has been placed before us by the appellant?s counsel and is kept on record. The said order mentions the factum of respondent no.1 having been appointed as a part-time medical officer and thereafter on ad hoc basis vide order dated 28.02.1992, followed by termination of his services along with others mentioned therein.

4. Although this order does not specifically mention the unfitness of respondent no.1, on being asked, Sri Mishra, appearing for respondent no.1, submitted that in fact that was the reason for not allowing him to join. However, as per Sri Mishra, even after the order dated 28.02.1992 by which respondent no.1 was appointed on an ad hoc basis, he was allowed to continue as a part-time medical officer until termination of his services vide order dated 21.05.1992.

5. This led to the filing of Civil Misc. Writ Petition No.20031 of 1992 (Shiva Kant Pandey v. Chief Medical Officer, Almora and others) by respondent no.1, wherein an interim stay order was passed on 04.06.1992. The said order, annexed as Annexure 3, has been perused by us. Although it was conditional, on being asked, the appellant's counsel fairly submitted that the post was not filled up nor was any daily wager appointed thereon. In spite of this, the said order was not complied with and respondent no.1 was not permitted to work. Ultimately, the said writ petition was decided on 19.02.1999 in the following terms:

?Heard Dr. R.G. Padia, learned counsel for the petitioner and learned Standing Counsel for the respondents.

The petitioners in this petition, have prayed for a writ of certiorari quash the impugned order dated 21-05-1992 terminating the services of the petitioner and for a writ of mandamus directing the respondents to permit the petitioner to continue to work till regular selection. Learned counsel for the petitioner states that petitoner no.3 has been absorbed after a fresh medical examination. Petitioners no.1 and 2 had been earlier found to be medically unfit on account of some eye trouble. On the facts and circumstances of the case, we direct that a fresh medical examination be held of petitioners 1 and 2 and appropriate orders passed thereafter within two months from the production of a certified copy of this order.? 6. Thereafter, the respondent no.1 was subjected to a fresh medical examination and, on being found fit, an order dated 26.08.1999 was issued to him, posting him as an ad hoc medical officer at Rajkiya Ayurvedic Medical College, Piyawan, Kannauj. The said order dated 26.08.1999 is on record and on a reading of it we find that it is not an order of fresh appointment but rather an order of posting after re-medical examination, in pursuance of the ad hoc appointment dated 28.02.1992 and in compliance of the judgment of this Court as referred to hereinabove. It reads as under:

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7. Apparently, in view of the aforesaid facts once the respondent no. 1 was medically re-examined in pursuance of the judgment of this Court and found fit resulting in his posting, the order of termination of his services dated 21.05.1992 became redundant and otiose.

8. Ever since then, the respondent no.1 continued to work, after joining. Ultimately, his services were regularized on 26.08.1999. He retired from service on 31.01.2012.

9. In the interregnum, there were other part-time medical officers who were not covered by the cut-off date mentioned in the Government Order dated 01.10.1990, on account of which, they were not considered for ad hoc appointment. A bunch of writ petitions were filed by such persons, which came to be decided finally vide judgment dated 09.07.2024, the leading writ petition being Writ-A No.26637 of 2012. Based on the aforesaid, Dr. Sushma Chandel, who was also similarly situated, filed Writ-A No.21307 of 2012, which was allowed on 07.08.2014. Thereafter, the last person who filed such a writ petition was Dr. Satya Pal Singh, who filed Writ Petition No.33744 (SS) of 2018, which was allowed on 01.10.1990, relying on a Full Bench decision rendered in Writ Petition No.1639 (SB) of 2015 (Dr. Sharma v. State of U.P. and others). The said order is also on record. On being asked, the counsel for the appellants fairly submitted that the services of all these persons have been regularized and they have been granted regularization on various dates with effect from a date prior to the cut-off date 30.06.1998, as mentioned in the U.P. Regularisation of Ad hoc Appointments (on posts outside the purview of the Public Service Commission) Rules, 1979, as amended from time to time. He fairly admitted that respondent no.1 herein was better situated than these persons, as his case was covered by the G.O. dated 01.10.1990 and, therefore, he was appointed on an ad hoc basis prior to these persons. However, the appellant?s counsel sought to draw a distinction on this very ground, which aspect we will deal later.

10. The fact remains that persons who were initially not covered by the cut-off date mentioned in the G.O. dated 01-10-1990 but litigated and got favourable orders, had their services regularized from a date prior to 30.06.1998 whereas respondent no.1, who was appointed on an ad hoc basis prior to them vide order dated 28.02.1992, and who is to be treated as an ad hoc employee from that date in view of the facts discussed hereinabove especially the interim order passed in the writ petition as also the final order pursuant to which he was re-examined medically and, on being found fit was posted as ad hoc medical officer, was denied regularization vide order dated 26-10-2022 only on the ground that his appointment order was dated 26.08.1999, subsequent to the cut-off date 30.06.1998. We have already held that on a bare reading of order dated 26-08-1999 it is not an order of fresh appointment but an order of posting.

11. We have perused the order dated 06.10.2022, which was the subject-matter of challenge before the Writ Court, and we find that the aforesaid is the only reason mentioned therein for denying him regularization. We have perused the initial ad hoc appointment order dated 28.02.1992 and the subsequent order dated 26.08.1999 passed in pursuance of the judgment of this Court, and even at the cost of repetition we have absolutely no doubt that the order dated 26.08.1999 is not an order of fresh ad hoc appointment but merely an order posting respondent no.1 as medical officer after he was re-medically examined. The appointment order remains 28.02.1992.

12. Moreover, there was an interim order passed in his case on 06.04.1992 which the appellants had not complied, therefore, they cannot take advantage of this fact and say that respondent no.1 did not work after the termination order dated 21.05.1992. The appellants have not given any reasons as to why respondent no.1 was not reinstated after the passing of the interim order, especially as, none of the conditions mentioned therein were satisfied which could have been a ground for his non-reinstatement.

13. In any case, on a consideration of the entire conspectus of facts, we are of the opinion that the State has acted arbitrarily and treated its employee unreasonably. Respondent no.1, for all legal and practical purposes, was a medical officer appointed on an ad hoc basis on 28.02.1992 and should be treated as such. Therefore, he falls within the cut-off date mentioned in the Rules, 1979, as amended from time to time. It is inexplicable as to how those who were appointed on ad hoc basis subsequent to him their services were regularized, but, respondent no.1's services were not regularised. The case of such persons who filed writ petitions and whose names have been mentioned hereinabove was on a lesser footing than respondent no.1.

14. The counsel for the appellant raised only one contention before us that the claim for regularization was highly belated. This contention is also rejected for the simple reason, when others, who were placed on a lesser footing than respondent no.1, had their services regularized, respondent no.1 should also have been considered at that very time. If for some reason this was not done earlier, once he represented, his case ought to have been considered. Delay is absolutely insignificant in the facts and circumstances noticed hereinabove. Respondent no.1 has already been harassed enough and should not be harassed any further. The learned Single Judge has directed reconsideration of the case of respondent no.1?petitioner for regularization of his services under the 1979 Rules, as amended from time to time, along with other ancillary directions.

15. In view of the discussions made hereinabove, we see absolutely no reason to interfere with the impugned judgment in the facts and circumstances of the case. The appeal, accordingly, lacks merit and is dismissed. The consideration shall be made strictly in accordance with the observations made hereinabove, within the time frame granted by the learned Single Judge, which shall start from the date of this judgment.

(Prashant Kumar,J.) (Rajan Roy,J.)

September 19, 2025

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