State Of U.P. Thru. Secy. Medcial And ... vs Anshu Gautam And Ors. on 17 January, 2025

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Allahabad High Court

State Of U.P. Thru. Secy. Medcial And ... vs Anshu Gautam And Ors. on 17 January, 2025

1. The State-appellants have come up before this Court assailing the judgment passed by the learned Single Judge in three separate writ petitions, which involve common questions of law and facts, hence, all the three intra-court appeals have been clubbed together and are being decided by this common judgment.

2. In order to put the controversy in a perspective, certain facts giving rise to the instant intra-court appeals are being noticed hereinafter:-

(i) Ms. Ankita Maurya along with 11 other co-petitioners had instituted a Writ Petition bearing No. 12609 (SS) of 2019 wherein a challenge was made to an order dated 29.03.2013 passed by the Director, Ayurvedic Services, U.P. whereby the claim of the said writ-petitioners seeking appointment on the post of Staff Nurses was turned down. In the writ petition a direction was sought that the State-respondents be directed to take necessary action and pass appropriate orders on the issue of appointment of the writ petitioners on the post of Staff Nurses;

(ii) Another writ petition bearing No. 33476 (SS) of 2019 filed by Ms. Bhawna Mishra also assailed the order dated 23.09.2013 passed by the Director, Ayurvedic Services turning down the claim of the said writ-petitioner for being appointed on the post of Staff-Nurse;

(iii) Similarly, another writ petition bearing W.P. No. 3415 (SS) of 2020 was filed by Ms. Anshu Gautam along with 6 other co-petitioners wherein they claimed a direction against the State-respondents to issue letters of appointment to the writ petitioners on the post of Staff-Nurses.

(iv) The writ petition of Ms. Bhawna Mishra bearing W.P. No. 33476 (SS) of 2019 came to be allowed by the learned Single Judge by means of order dated 07.01.2020. While allowing the writ petition, the order impugned passed by the Director, Aurvedic Services dated 25.09.2019 was set aside and a direction was issued directing the State-respondents to consider the candidature of the writ-petitioner for appointment as Ayurvedic Staff Nurse in a medical college, hospital or dispensary under the State-Government as per the prevalent policy which was being followed by the State-Government and the said exercise was to be done within a period of two months. This order dated 07.01.2020 of the learned Single Judge in W.P No. 33476 (SS) of 2019 is the subject matter of challenge in Special Appeal No. 214 of 2020.

(vi) Relying upon the decision rendered in the case of Ms. Bhawna Mishra, the learned Single Judge also allowed the writ petition of Ms. Ankita Maurya and 11 other co-petitioners bearing W.P. No. 12609 (SS) of 2019 vide judgment and order dated 28.01.2020. In this case too, the order passed by the Director, Ayuved Services dated 29.03.2019 was set aside and a direction was issued to consider the candidature of the petitioners for appointment as Ayurved Staff Nurses as done in the case of Ms. Bhawna Mishra (supra) and this judgment and order dated 28.01.2020 is the subject matter of Special appeal no. 257 of 2020.

(viii) The writ petition bearing No. 3415 (SS) of 2020 filed by Ms. Anshu Gautam along with 6 other co-petitioners was also disposed of by the learned Single Judge relying upon the decision of Bhawna Mishra (supra) and they too were granted the same relief as was granted to Ms. Bhawna Mishra, directing the State-Government to do the needful and provide the same benefit to the writ-petitioners as was to be extended to Ms. Bhawna Mishra. This judgment and order dated 06.10.2020 passed in W.P. No. 3415 (SS) of 2020 is the subject matter of special appeal bearing No. 317 of 2021.

3. This Court for the sake of convenience and for reference is taking note of the facts as emerging from W.P. No. 33476 (SS) of 2019 (Bhawna Mishra Vs. State of U.P. and Others).

4. The record indicates that in pursuance of an advertisement dated 23.09.2013 issued by the State-appellants, applications were invited for selection for Ayurvedic Nurse Training through Aurvedic Nurse Training Examination.

5. The writ-petitioners of Writ Petition No. 33476 (SS) of 2019 and of W.P. No. 12609 (SS) of 2019 submitted their applications and after going through the selection process successfully cleared the Ayurvedic Nurse Training. Despite having successfully completed their Ayurvedic Nurse Training Course, no appointment was accorded to the said writ-petitioners, hence, they had approached this Court by filing W.P. No. 19652 (SS) of 2019 (Ms. Bhawna Mishra Vs. State of U.P. and Others) wherein an order was passed on 19.07.2019 directing the State-respondents to consider the representation of the said writ petitioners by a reasoned and a speaking order within a period of three months.

6. Similarly, the writ petitioners of W.P. No. 12609 (SS) of 2019 also had submitted their representations and had earlier approached the Court by filing W.P. No. 6309 (SS) of 2019 which came to be disposed of by means of an order dated 14.03.2019 directing the Director, Ayurved Services, Lucknow to decide their representations, too which came to be rejected by means of order dated 29.03.2019, which in turn was assailed by Ms. Ankita Maurya and other co-petitioners in W.P. No. 12609 (SS) of 2019.

7. The writ petitioners had laid a common challenge to the order by which their representations were rejected, on the ground that even though the writ-petitioners had successfully completed their training of the Ayurvedic Nurse Training Programme yet they were not accorded any appointment despite a settled practice which was in vogue since 1972, to the effect that upon successfully completing the Ayurvedic Nurse Training Programme, the successful candidates were accorded appointment in the Ayurvedic Colleges, Dispensaries and Hospitals.

8. It was stated in the writ petition that there were no rules which had been framed by the State-Government and all such appointments were being done in furtherance of the Government Order dated 12th November, 1986.

9. The ground for refusing the appointments as indicated in the order passed by the Director, Ayurved Services, Lucknow was that the matter relating to promulgation of Service Rules was engaging the attention of the State-Authorities, coupled with the fact that since the pay of the Staff Nurse had been enhanced in the band of 9300-34800 and Grade Pay of Rs. 4600/- and all such appointments on the said posts are to be done by the Uttar Pradesh Subordinate Services Selection Commission, hence, only after the Rules are notified, the claim of the writ-petitioners could be considered.

10. The learned Single Judge noticing the stand of the State-Government found that the State was not justified in not considering the case of the writ-petitioners on the ground that the promulgation of the Service Rules were under consideration as the appointment of the writ petitioners would be in terms of the already existing policy and it could not have been made subject to the Rules which were in contemplation but yet not been notified.

11. It also noticed that earlier, it had been a practice that all such candidates who had been selected to undergo the Ayurvedic Staff Nursing Course, upon completion, were granted appointments in the Medical College, Hospital or Dispensary of the State-Government. Hence, the order of the Director, Ayurvedic Services, Lucknow rejecting the representation was set aside and a direction was issued to consider the candidature of the writ-petitioners.

12. It is in the aforesaid backdrop that the said order passed by the learned Single Judge in three separate writ petitions have been assailed by means of the instant three intra-court appeals as noticed above.

13. Leading the submissions on behalf of the State-appellants the learned Additional Advocate General Sri Kuldeep Pati Tripathi duly assisted by Sri Indrajeet Shukla, Additional Chief Standing Counsel has primarily assailed the order passed by the learned Single Judge on the following grounds:-

(I) the alleged advertisement dated 23.09.2013 by which the applications were invited from such candidates who desired to undergo Ayurvedic NurseTraining and having completed the said training does not automatically oblige the State-Government to grant appointments nor the advertisement indicated as such. The advertisement was for selection of candidates for undergoing the Ayurvedic Nurse Training Course and was not for selection to the post of Staff Nurses.

(ii) That the Department of Ayush (Ayurved) Nursing Services Rules, 2021 have been promulgated and they are applicable to the writ-petitioners. Once, the said rules have been notified and are governing the field, hence, the appointment of the writ petitioners can only be done in terms of the said Rules. Merely, successfully completing the Aurvedic Nursing Training Programme does not assure the writ-petitioners of Government employment.

(iii) That as per the Government Order dated 15th December, 2014, all such posts with a pay band of Rs. 9300-34800 and Grade Pay of Rs. 4600/- are to be made through the Uttar Pradesh Subordinate Services Selection Commission. Admittedly, the salary of the Staff Nurse has been enhanced and falls in the pay band of 9300-34800 and Grade Pay of Rs. 4600/- hence, the selection to the post of a Staff Nurses could only be done through the Uttar Pradesh Subordinate Services Selection Commission.

(iv) In this light, giving a direct appointment to the writ-petitioners would not be justified and it will be against the public interest as the other candidates who have completed their nursing training programme from the different private colleges would be discriminated. Such an action, even if done under the orders passed by the learned Single Judge would be contrary to the mandate of Article 14 of the Constitution of India, and this aspect has not been considered by the learned Single Judge while allowing the writ petition.

In such circumstances, the impugned order passed in the three writ petitions deserve to be set aside and the three intra-court appeals of the State be allowed.

14. Sri Shivam Sharma, learned counsel appearing for the respondents (the candidates/writ petitioners before the writ-court) submits that the entire premise of the submissions advanced by the learned Additional Advocate General is contrary to the material available on record.

(I) Elaborating his submissions, it has been urged that since 1972, the, State has been inviting the applications from the candidates to undergo Ayurvedic Nurse Training Programme. After undergoing selection procedure which envisages a written examination and an interview and thereafter the candidates so selected are imparted nurse training for a duration of three years and six months.

Only such candidates who complete the training successfully are then given the appointments. This is the practice which has been followed for decades and even the Government Orders dated 12.11.1986 recognized the aforesaid procedure.

(ii) As per the advertisement, all the selected candidates are required to furnish a bond indicating that upon successful completion of the training, the candidate would be bound to offer the services to work in any Government Hospital for a period of five years failing which the entire amount spent by the Government in training the said candidate would be recoverable along with 12% interest.

(iii) The State has adopted a practice for appointing such trained Nurses on the principle of year-wise and batch-wise basis since decades and till the year 2015. It is only now a different procedure has been carved out and that too is in light of the Rules which have been notified only in the month of November, 2021.

(iv) The State has not disputed the fact that till 2015, they have adopted the practice as mentioned above and in so far as the present respondents (writ petitioners) are concerned, they all would be governed by the Government Order dated 12.11.1986.

(v) The Rules which have come into force in November, 2021 can only have a prospective effect and cannot be made retrospectively applicable to the writ-petitioners (respondents herein).

(vi) Reliance placed on the Government Order dated 04.12.2013 to state that the pay band of Staff Nurse had been enhanced, coupled with the fact that as per the Notification dated 15th December, 2014, all such posts having a pay band of 9300-34800 and Grade Pay of Rs. 4600/- were to be filled through the U.P. State Subordinate Services Selection Commission is also fallacious since any appointment made by the UPSSSC can only be in terms of the Rules of appointment relating to such service. Since there were no rules formulated till November, 2021, hence, the said Government Order cannot have any applicability and it cannot be taken as a ground to deny the claim of the writ petitioners.

(vii) The issue raised by the State regarding the applicability of the Rules of 2021 and the Government Order dated 04.12.2014 and the fact that any appointment made would be hit by Article 14 of the Constitution of India are grounds which were never raised or urged before the learned Single Judge and have been placed before this Court, hence, the same deserves to be ignored. The order passed by the learned Single Judge does not require any interference and the intra-court appeals be dismissed.

15. The learned counsel appearing for the intervener have also adopted the submissions advanced by Sri Shivam Sharma and they too support the order passed by the learned Single Judge.

16. The Court has heard the learned counsel for the parties and also perused the material on record.

17. At the outset, it will be noticed that the State had invited applications as per advertisement dated 23.09.2013 which refers to the Government Order dated 12th November, 1986. The said Government Order indicates that all earlier Government Orders shall stand superseded and in order to bring about a qualitative change in the field of Ayurvedic and Unani treatment a fresh and a complete selection process is being prescribed. The said Government Order further indicates that the candidates must undergo a written examination, thereafter the selected candidates would further be required to undergo an interview and thereafter the finally selected candidates would undergo the training.

18. The record further indicates that all such candidates who cleared the training programme successfully were given appointments by the Government as per year and batch of such successful candidates.

19. It is not disputed that the Uttar Pradesh Ayush Department (Ayurved) Nursing Service Rules, 2021 came into force for the first time on 18th November, 2021 and prior thereto the appointments uptil the year 2015 were being done as per the Government Order dated 12th November, 1986.

20. In the aforesaid backdrop, if the contention of the rival parties is examined, it would be found that there can be no dispute and quarrel to the proposition that any Government Order or Service Rules would take effect from the date of it coming into force and unless it is given a specific retrospective operation, till then, the Government Order or the Service Rules would have prospective applicability.

21. Upon perusal of the order passed by the Director, Ayurved Services, Lucknow whereby the representation of the writ petitioners was rejected, it would reveal that there were two grounds noticed by the said Authority to reject the claim of the writ petitioners.

(i) That the Service Rules for the Ayush Department, Nursing Service was under the active consideration of the State Government.

(ii) The pay-band which is payable to the Staff Nurse had been enhanced and upon such enhancement, the said posts fell in the domain of the Uttar Pradesh Subordinate Service Selection Commission.

Hence, the claim of the writ petitioners could only be considered as per the rules which was to be notified by the State.

22. These two grounds per se do not inspire confidence to reject the claim of the writ-petitioners for the reason that the applications for imparting nursing training was made in the year 2013. The writ petitioners were selected for undergoing the said training through the procedure as established in terms of the Government Order dated 12th November, 1986 and there is no disputes to the fact that all such candidates, in the past, who had successfully completed the aforesaid training were granted appointments in Government Hospitals and Dispensaries on the year and batch wise principle.

23. It is also not disputed that as per the advertisement, the successful candidates enrolled for the training of Staff Nurse (Ayurvedic) were also required to furnish a bond offering their services to the State for a period of five years failing which the entire amount spent on the training of such candidates was recoverable along with interest at the rate of 12% per annum.

24. It is also not disputed that there are 479 sanctioned posts of Ayurvedic Nurses in the State of Uttar Pradesh and the year wise vacancies for the recruitment year 2011-12 till 2017-18 has been indicated in the supplementary affidavit dated 10th September, 2024 filed by the appellant and it indicates that in the year 2011-12 there are 228 vacancies, for the year 2012-13 there are 213 vacancies, in the year 2013-14, there are 202 vacancies, in the year 2014-15 there are 193 vacancies, in the year 2015-16, there are 162 vacancies, similarly in the year 2016-17, there are 164 vacancies and in the year 2017-18, there are 168 vacancies.

25. In so far as the 20 writ-petitioners (the respondents of the three intra-court appeals) are concerned, they had finally passed out between the 2017 and 2019 whereas two writ petitioners namely Raj Laxmi Singh and Ms. Reena had passed out in the year 2015. The date of their registration is also between the year 2018-19 and in so far as Ms. Rajlaxmi Singh and Ms. Reena are concerned, their registration date is 17.11.2016.

26. It is in the aforesaid factual backdrop that the learned Additional Advocate General Sri Tripathi submitted that if the number of nurses enrolled is seen in context with the vacancies available, it would indicate that the enrolled nurses are much more than the vacancies and in the aforesaid context the advertisement of the year 2013 only invited applications for undergoing the training but not assuring a selection for the post of Staff Nurse. In case if the appointment is granted to the writ petitioners, then it would be discriminatory in so far as other nurses who have got themselves enrolled.

27. It has also been explained by the learned AAG that earlier the training of Ayurvedic Staff Nurses was done by the State for which the applications were sought, however, later a policy decision was taken by the Government to permit the private colleges to offer such training.

28. In this view of the matter, the State has to consider that as and when the appointments are made for the post of Staff Nurse in terms of the Service Rules, the same has to be done through the Uttar Pradesh Subordinate Service Selection Commission where all such Nurses enrolled would be entitled to apply and based on the said selection, the appointments can be made.

29. The submission made on behalf of the State at the first blush sounds lucrative, however, in light of the admitted fact that the Rules came into force only in the month of November, 2021 whereas prior thereto i.e. till the year 2015, the appointments were made in terms of the Government Order dated 12th November, 1986 and all such Nurses who underwent training in the Government Medical Colleges were accorded appointments. Hence the Rules of 2021 can only have prospective application and the learned AAG for the State could not demonstrate that the Rules of 2021 have been given retrospective operations.

30. Thus, the submission made by the learned AAG can hold good in so far as appointments to be made to the post of Nursing Staff w.e.f. November, 2021 but not for the writ petitioners as their rights stood crystallized when they had applied for the training for the Ayurvedic Nurse Training Course and they were duly selected as per the Government Order dated 12th November, 1986.

31. At this stage, it will be relevant to notice the observations of the Apex Court in the case of Beg Raj Singh v. State of U.P., (2003) 1 SCC 726 and the relevant portion thereof is being reproduced hereinafter for ready reference:-

"........The ordinary rule of litigation is that the rights of the parties stand crystallized on the date of commencement of litigation and the right to relief should be decided by reference to the date on which the petitioner entered the portals of the court. A petitioner, though entitled to relief in law, may yet be denied relief in equity because of subsequent or intervening events i.e. the events between the commencement of litigation and the date of decision. The relief to which the petitioner is held entitled may have been rendered redundant by lapse of time or may have been rendered incapable of being granted by change in law. There may be other circumstances which render it inequitable to grant the petitioner any relief over the respondents because of the balance tilting against the petitioner on weighing inequities pitted against equities on the date of judgment. Third-party interests may have been created or allowing relief to the claimant may result in unjust enrichment on account of events happening in-between. Else the relief may not be denied solely on account of time lost in prosecuting proceedings in judicial or quasi-judicial forum and for no fault of the petitioner. A plaintiff or petitioner having been found entitled to a right to relief, the court would as an ordinary rule try to place the successful party in the same position in which he would have been if the wrong complained against would not have been done to him......."

32. The rights of the writ petitioners in the instant case would have to be seen in context with the advertisement dated 23.09.2013 for the recruitment year 2013-14 and the advertisement clearly provided a stipulation that all such candidates who were selected for training would have to offer their services to the State Government for a period of five year failing which the amount spent on the training was recoverable with interest at the rate of 12% per annum. This condition apparently was not a part of any application which were invited by private colleges and in any case it was subsequent to the advertisement which was published on 23.09.2013.

33. The private colleges have their own methodology of selection, even though, they prescribe the same qualification for the candidates as made by the State owned/operated colleges. However, all such candidates who after rigorous screening and undergoing the selection process as per the Government Order dated 12.11.1986 and thereafter successfully complete their training constitute a class separate candidates to those candidates who undergo the training programmes as offered by the private colleges.

34. In the aforesaid background where the State had been making appointments from amongst those candidates who applied for and were imparted training through the State Government Colleges on year and batch wise basis and in absence of any statutory rules, the same cannot be deviated without any justifiable reason. As noticed above, the Rules came into force only in November, 2021 and therefore prior thereto the practice followed by the State for a sufficiently long period cannot be ignored.

35. It is also trite law that the validity of an order is to be seen on the basis of reasons incorporated therein. No reasons can be supplemented through submissions or on the basis of material which may come to light subsequent to the date of passing of the order. (See Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405).

36. For the aforesaid reasons, as noticed above, the two grounds as mentioned in the order impugned before the writ court, to deny the claim of the writ petitioners are untenable in law. The reason that the Rules are under contemplation could not be the basis of not considering the case of the writ petitioners even though the vacancies existed. The other ground that since the pay band of Staff Nurse (Ayurvedic) had been enhanced and for all such posts it was the State Subordinate Service Selection Commission who was competent to fill the post is also misconceived as in absence of Service Rules, which came into force only in the month of November, 2021, the said Commission could not be authorized to fill up the posts relating to vacancies prior to November, 2021. Hence, the reason of the State of not following the practice, in vogue since decades, and acceptance and it created reasonable expectation in the minds of the candidates who had applied for the training course in pursuance of the advertisement dated 23.09.2013 for the recruitment year 2013-14 is not worthy of being upheld.

37. The learned Single Judge has considered the aforesaid aspect and has noticed that in absence of the Rules, the appointment could not be refused simplicitor as the Rules were still in the process of being framed and notified whereas there was a settled practice which was adopted by the State for decades as per the Government Order which itself was incorporated in the advertisement which clearly gives a legitimate expectation to the candidate that in case a candidate is selected and successfully completes the training then she has right for being considered for the appointment. Moreover, the vacancies do exists and the reasons as mentioned in the order impugned in the writ petition are unsustainable, hence, it has been rightly set aside by the learned Single Judge.

38. In light of the aforesaid, this Court does not feel persuaded to accede to the submissions of the appellants, consequently, all the three intra-court appeals bearing Special Appeal No. 317 of 2021 (State of U.P. and others Vs. Anshu Gautam and others), Special Appeal No. 214 of 2020 (State of U.P. and others Vs. Bhawna Mishra) and Special Appeal No. 257 of 2020 (State of U.P. Vs. Km. Ankita Maurya and others) are dismissed and the order passed by the learned Single Judge in three petitions i.e. W.P. No. 3415 (SS) of 2020, W.P. No. 33476 (SS) of 2019 and W.P. No. 12609 (SS) of 2019 are affirmed.

39. Costs are made easy.

Order Date:- 17th January, 2025 Asheesh/-

(Jaspreet Singh, J.) (Arun Bhansali, CJ.)

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