Allahabad High Court
Dr.Naval Kishore & 22 Ors. vs State Of U.P ... on 6 February, 2019
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 17 A.F.R. Case :- SERVICE SINGLE No. - 29138 of 2016 Petitioner :- Dr.Naval Kishore & 22 Ors. Respondent :- State Of U.P Thru.Prin.Secy.Deptt.Medical Edu.& Ayush & 2ors Counsel for Petitioner :- Birendra Pratap Singh,Sameer Kalia Counsel for Respondent :- C.S.C,Avinash Tiwari with Case :- SERVICE SINGLE No. - 7137 of 2017 Petitioner :- Dr.Anil Kumar Agarwal & 3 Ors. Respondent :- State Of U.P.Thru.Prin.Secy.Deptt.Medical Education & Anr. Counsel for Petitioner :- Sameer Kalia,Birendra Pratap Singh Counsel for Respondent :- C.S.C with Case :- SERVICE SINGLE No. - 12752 of 2017 Petitioner :- Dr. Rakesh Nigam & Others Respondent :- State Of U.P. Thru. Secy. Deptt. Of Ayush, Anubhag-1 & Anr. Counsel for Petitioner :- Manish Kumar Counsel for Respondent :- C.S.C. Hon'ble Irshad Ali,J.
(1) Heard Sri S.K. Kalia, learned Senior Counsel assisted by Sri Sameer Kalia and Sri Manish Kumar, learned counsel for the petitioners and to the learned Standing Counsel on behalf of respondent Nos.1 to 3, Sri Avinash Tiwari, learned counsel for the newly impleaded respondent Nos.4 and 5.
(2) This bunch of writ petitions is being decided by means of a common judgment and order treating Writ Petition No.29138 (SS) of 2016 to be leading writ petition.
(3) Factual matrix of the case is that an advertisement was issued on 23.05.1987 inviting applications to fill up 1400 posts of Medical Officers (Ayurveda and Unani) and Medical Officers (Ayurveda and Unani - Community Health) on ad hoc basis. In pursuance thereof, the petitioners applied for and were selected in the said selection proceeding against the vacancies, which were available and advertised in pursuance to the aforesaid advertisement. The petitioners were granted appointment on the post of Medical Officers (Ayurvedic and Unani) vide appointment order dated 18.06.1988 and in pursuance thereof, they joined and started discharging duties on their respective posts.
(4) In view of the provisions contained under U.P. Regularization of Ad hoc appointments (On Posts within the Purview of Public Service Commission), Rules, 1979 (for short, "Rules of 1979") services of the petitioners were regularized vide order dated 16.03.2005. Similarly situated Medical Officers, who were also selected and posted in the same selection proceeding, claimed regularization on completion of three year's service in accordance with the Rules of 1979. After due consideration, the State Government resolved to grant regularization to them w.e.f. 21.01.1991. On the cut of date fixed by the State Government, the Medical Officers were completing three year's service. Thus, they represented the matter before the Director, Ayurvedic Services, U.P. at Lucknow and the Director, Unani Services, U.P. at Lucknow.
(5) Certain Medical Officers claimed that they should also be granted regularization w.e.f. 21.01.1991. Their claim was rejected vide order dated 06.04.2010. Therefore, Writ-A No.30339 of 2010 was filed before this Court, which was finally disposed of vide judgment and order dated 25.05.2010.
(6) In pursuance to the direction issued, the State Government passed an order on 28.07.2011, whereby it was resolved as under:
"Ekk0 mPPk U;k;ky; ds vkns'k fnukad 25-5-2010 ds vuqikyu esa fpfdRlkf/kdkjh ¼lkeq0Lok0½ ds fofu;ferhdj.k dh mDr folaxfr dks nwj fd;s tkus gsrq v|kof/kd ;Fkk la'kksf/kr m0iz0 ¼yksd lsok vk;ksx ds {ks=kaUrxZr inksa ij½ rnFkZ fu;qfDr;ksa dk fofu;ferhdj.k] fu;ekoyh 1979 ds fu;e&4 ds mi fu;e ¼3½ ds vUrxZr xfBr p;u lfefr dh laLrqfr ds vk/kkj ij jkT;iky egksn; fnukad 30 twu]1998 ls iwoZ rnFkZ :i ls o"kZ 2003 ,oa o"kZ 2005 esa fofu;fer fd;s x;s fpfdRlkf/kdkjh ftudh lwph layXu gS] dh rnFkZ lsokvksa dks muds uke ds lEeq[k vafdr dkye&4 esa fofu;ferhdj.k frfFk dks la'kksf/kr djrs gq;s dkye&5 es vafdr frfFk ls fofu;fer fd;s tkus dh Jh jkT;iky egksn; lg"kZ Lohd`fr iznku djrs gSaA 2& mDr fpfdRlkf/kdkfj;ksa dh ikjLifjd T;s"Brk fu;qfDr ds vkns'k ds fnukad tks layXu lwph esa Hkh vafdr gS] ds vuqlkj gksxhA ;fn nks ;k vf/kd O;fDr ,d lkFk fu;qDr fd, x, gSa rks ml dze esa muds uke dzec) fd;s tk;saxs ftl dze esa muds uke fu;qfDRk vkns'k esa dzec) gSaA 3& ;g Hkh funsZf'kr fd;k tkrk gS fd fofu;ferhdj.k dh lwpuk d`i;k lHkh lEcfU/kr vf/kdkfj;ksa dks funs'kky; Lrj ls miyC/k djk;h tk,axhA"
(7) Under the order dated 28.07.2011, it has been provided that the ad hoc Medical Officers (Ayurvedic and Unani), who were selected in the selection proceeding of year 1988, on completion of three year's service, their services shall be regularized after consideration of their claim and thereafter, they shall be regularized in service from the date they completed three years of service on ad hoc basis.
(8) The petitioners, by means of representation, claimed the benefit with effect from the date of regularization on completion of three year's service and claimed parity with the Medical Officers, who were granted appointment in the same selection proceeding under the same condition.
(9) The Director, Ayurvedic Services, U.P. at Lucknow made recommendation of the petitioners vide letters dated 15.10.2012 and 27.02.2012, wherein each and every aspect of the matter was considered and then recommendation was made for consideration of their claim for regularization on completion of three year's service as ad hoc Medical Officer. The recommendation is enclosed as Annexure No.13 to the writ petition.
(10) The State Government, by means of the impugned order dated 14.03.2012, rejected the claim of the petitioners only on the ground that the petitioners were appointed in different cadres, therefore, the benefit provided to selectees of 1988 selection proceeding cannot be granted to the petitioners, as they are not in the same cadre.
(11) Assailing the order passed by the State Government dated 14.03.2012, submission of learned Senior Counsel is that the petitioners were also selected in the same selection proceeding on the post of Medical Officer on ad hoc basis in the year 1988. For no fault of them, they were posted in the Community Health Cadre, due to which, their claim has been rejected. Therefore, the impugned order is not sustainable in law.
(12) He next submitted that the Medical Officers, who were selected and appointed along with the petitioners, were transferred in Ayurvedic and Unani Primary Health Centres and in this regard the cadre was promulgated in the year 2003. The Medical Officers, who were working in Primary Health Centres were placed in one cadre and the Medical Officers, who were working in the Ayurvedic and Unani Hospitals, were placed in the different cadre. The petitioners were also similarly selected candidates, then by placing them in different cadre, their right for consideration of regularization in view of the Rules of 1979 cannot be affected on this ground.
(13) He further submitted that while passing the impugned order, the State Government has no-where taken care of the recommendation made by the Director, Ayurvedic Service U.P. at Lucknow. Thus, due to non consideration of the recommendation of the Director, the order impugned vitiates in law being violative of principles of natural justice.
(14) Learned Senior Counsel for the petitioners made further submission that the petitioners are legally entitled to be considered under the provisions of U.P. Regularization of Ad hoc appointments (On Posts within the Purview of Public Service Commission), Rules, 1979. Thus, the order of rejection passed by the respondent No.1 is illegal and arbitrary in nature.
(15) On the other hand, learned Standing Counsel appearing on behalf of respondent Nos.1 to 3 submitted that the Rules of 1979 does not permit regularization from back date. He further submitted that the petitioners do not belong to the cadre of the Medical Officer, who have been regularized as Medical Officers. Thus, the parity claimed by the petitioners cannot be granted.
(16) He next submitted that the recommendation made by the Director, Ayurvedic Services, U.P. at Lucknow was duly considered and thereafter, the impugned order dated 14.03.2012 was passed. Thus, the order does not suffer from any infirmity or illegality and is just and valid.
(17) Sri Avinash Tiwari, learned counsel representing respondent Nos.4 and 5 submitted that in case the petitioners are granted regularization from the back date, the seniority of the respondent Nos.4 and 5 shall be affected for no valid justification. He further submitted that the respondents are regularly selected Medical Officers by U.P. Public Service Commission and they are above than the petitioners in the merit list and in case the services of the petitioners are regularized from the year 1991, their seniority will be affected. Thus, the petitioners are not legally entitled for regularization from the back date.
(18) He next submitted that the parity of regularization cannot be claimed. Under Rules of 1979, the petitioners are not entitled for regularization from the back date and in case some of the Medical Officers have been granted regularization contrary to the Rules of 1979, no benefit can be claimed by the petitioners. In support of his submissions, he placed reliance upon paragraph No.5 of a judgment in the case of Mahendra vs. State of U.P. and another, passed in Writ-A No.66250 of 2013 decided vide judgment and order dated 04.12.2013, which is being quoted below:
"5. Learned counsel for petitioner failed to show that regularization of others from backdate was consistent with the scheme of statutory provisions and, therefore, was made validly. It is well settled that if a wrong has been committed by the respondents in respect to some other persons, that will not provide a cause of action to claim parity on the ground of equal treatment since the equality in law under Article 14 is applicable for claiming parity in respect to legal and authorized acts. Two wrongs will not make one right. The Apex Court in the case of State of Bihar and others Vs. Kameshwar Prasad Singh and another, AIR 2000 SC 2306; Union of India and another Vs. International Trading Co. and another, AIR 2003 SC 3983; Lalit Mohan Pandey Vs. Pooran Singh and others, AIR 2004 SC 2303; M/s Anand Buttons Ltd. etc. Vs. State of Haryana and others, AIR 2005 SC 5565; and Kastha Niwarak G. S. S. Maryadit, Indore Vs. President, Indore Development Authority, AIR 2006 SC 1142 has held that Article 14 has no application in such cases. "
(19) Having heard the rival contentions advanced by learned counsel for the parties, I perused the material on record and the law report relied upon by learned counsel for respondent Nos.4 and 5.
(20) The petitioners are selectees of a selection proceeding initiated by issuing advertisement in the news papers inviting applications from eligible and qualified candidates against the vacancies available on the post of Medical Officers (Ayurvedic and Unani). A selection Committee was constituted, which selected the petitioners along with other similarly situated Medical Officers and they were granted appointment on their respective posts in different districts.
(21) U.P. Regularization of Ad hoc appointments (On Posts within the Purview of Public Service Commission), Rules, 1979 was amended vide notification issued in the official gazetted on 20.12.2001. The Medical Officers, who were appointed in pursuance to the selection made in the year 1988 on ad hoc basis, claimed regularization on completion of three year's service, as was provided under the amended rules. Taking into consideration the grievances of the petitioners, the State Government issued a notification on 12.01.2010, whereby the Medical Officers, who were working on ad hoc basis and were regularized in the year 2003 and 2005 were considered and were directed to be regularized w.e.f. 21.01.1991. Thereafter, during course of consideration, it came to notice that the Medical Officers, who were selected and appointed in the selection proceeding of 1988, are not completing three year's ad hoc service till 21.01.1991. Therefore, their claims were rejected.
(22) Then Writ-A No.30339 of 2010; Dr. Muinuddin and others Vs. State of U.P. and others was filed before the Division Bench of this Court, wherein after considering the provisions of Rules of 1979, the following direction was issued vide judgment and order dated 25.05.2010:
"The writ petition is accordingly disposed of with directions that the State Government will issue fresh corrected list and consequential orders as expeditiously as possible and preferably within a period of 8 weeks. In the meantime the benefits drawn by the petitioners in terms of the regularisation orders in their favour shall not be withdrawn from them. It will be open to the petitioner to challenge, if any person, junior to them is placed higher to the petitioners, on account of such modifications or consequential orders."
(23) On perusal of the direction contained under the aforesaid judgment and order, it is transpired that the State Government was directed to issue a fresh corrected list and consequential orders as expeditiously as possible preferably within a period of eight weeks. In the meantime, the benefits drawn by the petitioners in terms of the regularization orders in their favour shall not be withdrawn from them. It was open to the petitioners to challenge, if any, person junior to them is placed higher to the petitioners, on account of such modifications or consequential orders.
(24) In compliance of the said order, the State Government reconsidered the matter and passed an order on 28.07.2011, whereby it has been provided that ad hoc Medical Officers, who have completed three years of ad hoc service, should be provided regularization from the date of completion of their ad hoc services of three years.
(25) The petitioners claim the same benefit, which was provided under the Rules of 1979 to the Medical Officers, who were granted ad hoc appointment in pursuance to the selection made in the year 1988. The Director, Ayurvedic Service, U.P. at Lucknow made recommendation vide letters dated 15.10.2012 and 27.02.2012 to the State Government for consideration of the claim of the petitioners bringing on record the relevant material and facts. The recommendation of the Director is annexure No.13 to the writ petition.
(26) The State Government, on the recommendation made by the Director, passed an order on 14.03.2012, whereby the claims of the petitioners have been rejected on the ground that they are Medical Officers working in Ayurvedic and Unani Primary Health Centres. Therefore, their cadre is different and therefore, they cannot claim parity with the Medical Officers, who have been provided benefit of Rules of 1979 while granting regularization on completion of three year's service.
(27) The petitioners have been selected in the same selection proceeding. By placing them in different cadre, their claim for regularization on completion of three year's service, as resolved by the State Government ,cannot be denied. They are also covered under the provisions of Rules of 1979, as they have also completed their ad hoc services, as the Medical Officers, who were selected in the same selection proceeding and have been granted benefit of regularization. Thus, the ground of rejection in the impugned order is not sustainable in law.
(28) On perusal of the provisions contained under the rules, it is evident on the face of it that it has not carved out distinction between the cadres. It provides that the ad hoc Medical Officers, who have completed three year's service on the particular date, are entitled to be considered for grant of regularization.
(29) Once, the State Government has resolved to grant promotion from the date of completion of three year's service taking into consideration the Rules of 1979 and has provided benefit to certain Medical Officers with effect from the date of completion of three years service, then the petitioners being selectees of the same selection proceeding, cannot be deprived from the benefit provided to the similarly situated candidates.
(30) The judgment relied upon by learned counsel for respondent Nos.4 and 5 in the case of Mahendra vs. State of U.P. and another (Supra) that there should be no parity of wrongs, is not applicable to the present facts and circumstances of the case in view of the fact that the State Government in accordance with the Rules of 1979 has provided the benefit to other Medical Officers on completion of three year's service. They have not been provided the benefit contrary to the Rules of 1979. Thus, the submissions advanced by learned counsel for the respondents are not tenable in law and are hereby rejected.
(31) In view of the finding recorded above, the impugned order dated 14.03.2012 is liable to be set aside and is hereby set aside.
(32) The bunch of writ petitions succeeds and is allowed.
(33) The respondent No.1 is directed to reconsider the matter of the petitioners in accordance with the provisions contained under U.P. Regularization of Ad hoc appointments (On Posts within the Purview of Public Service Commission), Rules, 1979 and to pass appropriate reasoned and speaking order within a period of six weeks from the date of production of a certified copy of this order in accordance with the observation made above.
Order Date :- 6.2.2019 Adarsh K Singh