Allahabad High Court
Dr. Sidharth vs State Of U.P.& Another on 10 January, 2014
Bench: Rajes Kumar, Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Case :- WRIT - A No. - 53934 of 2013 Petitioner :- Dr. Sidharth Respondent :- State Of U.P.& Another Counsel for Petitioner :- Prabhakar Awasthi Counsel for Respondent :- C.S.C. Hon'ble Rajes Kumar,J.
Hon'ble Mahesh Chandra Tripathi,J.
(Delivered by Hon'ble M.C. Tripathi,J.) Heard learned counsel for the petitioner and learned Standing Counsel.
The present writ petition has been filed by the petitioner seeking promotion on the post of Professor in Surgery Department of Moti Lal Nehru Medical College, Allahabad. The contention of the petitioner is that when other similarly situated doctors, namely, Dr. D.C. Srivastava, Dr. Mayank Srivastava, Dr. V.K. Pandey and Dr. Alok Chandra have been promoted on the post of Associate Professor in the year 2009. Aggrieved with the discrimination with other doctors, petitioner had filed Writ Petition No. 65598 of 2010 before this Court, which has been disposed of vide order dated 07.02.2013 with the following observations:-
"Heard learned counsel for the petitioner and the learned standing counsel.
The petitioner who was earlier belonging to Provincial Medical and Health Services, has resumed duties in Moti Lal Nehru Medical College, Allahabad on 10.5.1999. According to petitioner's counsel similarly situated persons who resumed duty in Moti Lal Nehru Medical College, Allahabad, subsequent to petitioner, have been absorbed and have been promoted to higher post but the petitioner's case has not been considered. By an interim order, this Court directed to decide the matter of the petitioner, which seems to have not been decided.
We dispose of the writ petition finally directing the Principal Secretary, Medical Education, Government of U.P., to look into the matter and decide petitioner's representations dated 27.2.2009, 12.7.2009 and 31.3.2010 collectively filed as Annexure No.8, 9 and 10 to the writ petition, in accordance with law by passing a speaking and reasoned order expeditiously say, within two months from the date of receipt of a certified copy of this order and communicate decision. It shall be open to the petitioner to submit fresh representation along with the certified copy of the present order.
The writ petition is finally disposed of."
Inspite of the order passed by this Hon'ble Court dated 07.02.213, as mentioned above, no decision has been taken by the answering respondent. Thereafter the petitioner was compelled to file a Civil Misc. Contempt Petition No. 2121 of 2013. The Hon'ble Contempt Court vide its order dated 04.07.2013 has passed the following order:-
"Heard learned counsel for the parties.
This contempt petition has been filed with the allegation that despite the order dated 7.2.2013 passed in Writ Petition No. 65598 of 2010 the opposite party has neither considered the absorption of the applicant in the Medical College nor his subsequent promotion.
Upon notice, learned Standing counsel has produced an order passed by the opposite party stating that a decision has been taken for absorption of the applicant and he seeks time to bring it on record through an affidavit.
Let that be done.
However, a perusal of the said order does not show that the promotion of the applicant was considered, let this aspect be also considered.
Counsel for the applicant may file a reply, if any.
List in the next cause list. "
In compliance of the aforementioned direction, the Principal Secretary, Medical Health vide order dated 30.07.2013 had decided the issue and operating portion of the said decision is being quoted below:-
5& bl laca/k esa mYys[kuh; gS fd 'kklu ds dk;kZy; Kki fnukad 03-07-2013 }kjk MkW0 fl)kFkZ dks mudh fof'kLVrk esa eksrh yky usg: esfMdy dkyst] bykgkckn esa lgk;d vkpk;Z ds :i esa Lohdkj fd;s tkus@vkesfyr fd;s tkus ds vkns'k fuxZr fd;s tk pqds FksA ek0 U;k;ky; }kjk voekuukokn esa ikfjr vkns'k fnukad 04-07-2013 ds dze esa MkW0 fl)kFkZ dh izksUufr ds laca/k esa m0iz0 jkT; fpfdRlk egkfo|ky; v/;kidksa dh lsok (f}rh; la'kks/ku) fu;ekoyh] 2005 ds fu;e&15 ds rgr egkfuns'kd] fpfdRlk f'k{kk ,oa izf'k{k.k] m0iz0 }kjk ;kph MkW0 fl)kFkZ] lgvkpk;Z] ltZjh foHkkx] esfMdy dkyst] bykgkckn dks vkpk;Z ds in ij oS;fDrd izksUufr iznku fd;s tkus ds lEcU/k esa izLrko miyC/k djk;k x;kA 6& mRrj izns'k jkT; fpfdRlk egkfo|ky; v/;kidksa dh lsok (f}rh; la'kks/ku) fu;ekoyh] 2005 ds fu;e&15 ds vUrxZr jktdh; ,yksiSfFkd esfMdy dkystksa esa fpfdRlk f'k{kdksa dh oS;fDrd izksUufr ds lEcU/k esa fuEu izfdz;k viuk;s tkus dk mYys[k fd;k x;k gS%& "(,d) ekSfyd :i ls fu;qDr fdlh izk/;kid dks bl :i esa rhu o"kZ dh lUrks"ktud lsok iw.kZ djus ds i'pkr~ mlds Lo;a ds in ds lkFk lgk;d vkpk;Z ds in ij oS;fDrd inksUufr nh tk;sxhA (nks) fdlh v/;kid dks] ftls izk/;kid ;k lgk;d vkpk;Z ds in ij ekSfyd :i ls fu;qDr fd;k x;k gS] lgk;d vkpk;Z ds :i esa pkj o"kZ dh lUrks"ktud lsok iw.kZ djus ds i'pkr~ vkSj dksbZ v/;kid tks lEc) fof'k"V fo"k; ls dksbZ ekU;rk izkIr Mh0,e0@,e0lh0,p0 dh vgZrk j[krk gS] lgk;d vkpk;Z ds :i esa nks o"kZZ dh lUrks"ktud lsok iw.kZ djus ds i'pkr vius Lo;a ds in ds lkFk lg&vkpk;Z ds in ij oS;fDrd inksUufr nh tk;sxhA (rhu) fdlh lg&vkpk;Z dks] ftls izk/;kid ;k lgk;d vkpk;Z ;k lg&vkpk;Z ds in ij ekSfyd :i ls fu;qDr fd;k x;k gS] lg&vkpk;Z ds :i esa N% o"kZ dh lUrks"ktud lsok ;k lgk;d vkpk;Z vkSj lg&vpk;Z ds :i esa U;wUre vkB o"kZ dh vof/k ftlesa lg&vkpk;Z ds :i esa pkj o"kZ dh lUrks"ktud lsok Hkh lfEefyr gks] iw.kZ djus ds ckn vius Lo;a ds in ds lkFk vkpk;Z ds in ij oS;fDrd inksUufr nh tk;sxhA ijUrq bl rF; ds gksrs gq, Hkh fd mRrj izns'k jkT; fpfdRlk egkfo|ky; v/;kidksa dh lsok (f}rh; la'kks/ku) fu;ekoyh] 2005 ds izkjEHk ds fnukad ds iwoZ dksbZ Ikw.kZ dj ysrk gS] mls ,sls iwoZorhZ fnukad ls tks ,sls izkjEHk ds iwoZ iM+rk gS] vxys mPprj in ij oS;fDrd inksUufr ugha nh tk;sxhA"
7& mijksDr ds ifjizs{; esa fnukad 16-07-2013 dks vfHkys[kksa ds vk/kkj ij p;u lfefr }kjk MkW0 fl)kFkZ dh izksUufr ds lEcU/k esa fopkj fd;k x;k rFkk ;g ik;k x;k fd MkW0 fl)kFkZ lgvkpk;Z] ltZjh foHkkx] esfMdy dkyst] bykgkckn orZeku esa vkpk;Z ds in ij izksUufr gsrq fu/kkZfjr 'kSf{kd vuqHko iw.kZ ugha djrs gSaA MkW0 fl)kFkZ dh fu;qfDr esfMdy dkyst] bykgkckn ds ltZjh foHkkx esa o"kZ 2004 esa izoDrk ds :i esa gqbZ gS vkSj mUgsa o"kZ 2010 esa lgvkpk;Z ds :i esa inukfer fd;k x;k gS rFkk MkW0 fl)kFkZ dks ek0 mPp U;k;ky; ds vkns'k fnukad 07-02-2013 ds vuqikyu esa dk;kZy; Kki fnukad 03-07-2013 }kjk lgk;d vkpk;Z ds :i esa vkesfyr fd;s tkus dh Lohd`fr iznku dh x;h gSA 8& p;u lfefr }kjk ik;k x;k fd m0iz0 jkT; fpfdRlk egkfo|ky; v/;kidksa dh lsok (f}rh; la'kks/ku) fu;ekoyh] 2005 ds fu;e&15 (3) ds vuqlkj fdlh lgvkpk;Z ds :i esa 04 o"kZ dh larks"ktud lsok iw.kZ djus ds i'pkr vkpk;Z in ij oS;fDrd izksUufr nh tk;sxhA MkW0 fl)kFkZ lgvkpk;Z ds :i esa 4 o"kZ dh lsok fnukad 22-11-2014 dks iw.kZ djsaxs] orZeku esa MkW0 fl)kFkZ dks vkpk;Z ds in ij izksUur djus gsrq 01 o"kZ 11 ekg 7 fnu dh vof/k de gS] blfy, mUgsa fnukad 22-11-2014 ls iwoZ vk;k;Z ds in ij izksUur fd;k tkuk fu;ekUrxZr ugha gSA p;u lfefr }kjk lE;d fopkjksijkUr MkW0 fl)kFkZ dh lgvkpk;Z ds :i esa dk;Z djus dh fu/kkZfjr vof/k iw.kZ u gksus ds dkj.k MkW0 fl)kFkZ dks lgvkpk;Z ls vkpk;Z ds :i esa oS;fDrd izksUufr fd;s tkus dk vkSfpR; ugha ik;k x;k A p;u lfefr }kjk dh x;h laLrqfr ds vuqlkj flfoy fel0 voekuuk ;kfpdk la[;k &2121@2013 esa ikfjr vkns'k fnukad 04-07-2013 ds dze esa vkpk;Z ds in ij izksUufr fo"k;d MkW0 fl)kFkZ dk izR;kosnu fnukad 07-07-2013 ,rn~}kjk fujLr djrs gq, fuLrkfjr fd;k tkrk gSA ts0ih0 'kekZ izeq[k lfpo Aggrieved with the rejection of the claim of the petitioner, the present writ petition has been filed with following prayer:-
(i) Issue a writ, order or direction in the nature of certiorari calling for the records of the case and to quash the impugned order dated 30.07.2013 passed by respondent No. 1 (Annexure No. 14 to the writ petition).
(ii) Issue a writ, order or direction in the nature of certiorari calling for the records of the case and to quash the impugned order dated 03.07.2013 (in part) in so far as it pertains to absorption of petitioner from 15.06.2009 on the post of Assistant Professor (Annexure No. 13 to the writ petition).
(iii) A writ, order or direction in the nature of mandamus commanding the respondents to forthwith promote petitioner on the post of Professor w.e.f. 07th August, 2003 i.e. the date on which petitioner successfully completed 18 years of over all service in Moti Lal Medical College, Allahabad as per amended Regulation, 2005.
(iv) Issue any other suitable writ, order or direction as this Court may deem fit and proper in the facts and circumstances of the case.
(v) Award cost of petition to the petitioner.
In the present matter, counter affidavit and rejoinder affidavit have been exchanged between the parties with the consent of the parties. Writ petition is being disposed of at this stage.
We have perused the record. The claim set out by the petitioner as well as stand of the Government, some basic facts are necessary in the matter for proper adjudication of the case.
It appears that the petitioner had completed medical education and recruited in the Department of Surgery as House Officer w.e.f. 01.01.1977 up to 31.12.1977 and thereupon as a junior residence from 01.01.1978 to 31.12.1978. The petitioner further discharged his duties as a senior resident from 01.07.1989 to 02.12.1989. The experience certificate has already been brought on record through Annexure No. 1 to the writ petition.
It also appears that vide order dated 21.11.1979, petitioner was appointed as Medical Officer in PMHS, U.P. and thereafter in the month of August, 1987, petitioner was sent on deputation to Swaroop Rani Nehru Hospital, Allahabad where he had joined on 07.08.1987. Subsequently, vide order dated 10.05.1999, petitioner has been engaged in the Surgery Department and the engagement order had been passed by the Principal of the Motil Lal Nehru, Medical College. It also appears that considering the paucity of the Lecturers and Teachers in the Medical College, the petitioner vide order dated 15.12.2004 had been transferred as Lecturer in the Surgery Department of Moti Lal Nehru Medical College, Allahabad and the said assignment was extended from time to time.
It also appears that four other similarly situated doctors, namely, Dr. D.C. Srivastava, Dr. Mayank Srivastava, Dr. V.K. Pandey and Dr. Alok Chandra were also transferred to the Moti Lal Nehru Medical College, Allahabad as Lecturer and their assignment had also been extended from time to time. Meanwhile, on 21.03.2006, Allahabad University has been declared as Central University and Moti Lal Nehru Medical College, Allahabad had also been made part of Allahabad University. In this regard vide letter dated 23.05.2007, addressed to the Registrar, University of Allahabad petitioner had given his option. The same has been brought on record through Annexure No. 5 to the writ petition. Subsequently, on 16.07.2008 Moti Lal Nehru Medical College, Allahabad was detached from the Allahabad Central University and was attached to the State of U.P. Aggrieved with such detachment, some writ petition had been filed before this Hon'ble Court challenging the aforesaid detachment and after dismissal of the said writ petition, SLP No. 5082 of 2007 had been filed before the Hon'ble Apex Court, but of no avail. The present status of the Medical College which continues to be under control of the State Government. In this regard, the State Government vide order dated 15.06.2009 (Annexure No. 7-A to the writ petition) had taken a decision that some doctors, namely, Dr. Mayank Srivastava, M.S. Opthalmology, Dr. V.K. Pandey, M.S. Surgery and Dr. Alok Chandra, M.D. T.B. & Chest had already been accepted as employee of the University, therefore, there is no occasion to repatriate them on account of detachment. Notification dated 16.07.2008 by which Medical College had been detached from Allahabad University. Therefore, they may be given liberty to continue to work in the Medical College and their services had been absorbed as Assistant Teacher in the Medical College on the same term another doctor, namely, Dr. D.C. Srivastava who happened to be doctor of PHMS cadre. The Government had taken decision on the basis of the recommendation made by the Law Department on 29.01.2009 in favour of Dr. D.C. Srivastava to be absorbed in the Medical College as Assistant Teacher and finally it also decided that the case of Dr. Mayank Srivastava, Dr. V.K. Pandey and Dr. Alok Chandra matter could also be dealt similar to Dr. D.C. Srivastava. Therefore, they were also be treated as doctor of Medical College, Allahabad. While passing the order dated 15.06.2009 with regard to the aforementioned four other doctors, the reason best known to the respondent, the case of the petitioner which happened to be similarly situated had not been considered and had been discriminated. It also transpires vide order dated 16/11-10-2012 Dr. D.C. Srivastava had been promoted on the post of professor in the Medical College. It is admitted situation that the petitioner had been engaged in the Medical College prior to aforementioned doctors, namely, Dr. D.C. Srivastava, Dr. Mayank Srivastava, Dr. V.K. Pandey and Dr. Alok Chandra. Inspite of the seniority, neither his absorption nor his promotion had been considered by the Government within time. It was a consistent case of the petitioner that on account of parity with the aforementioned doctors, the same benefit had to be conferred to the petitioner and from very beginning the petitioner continuously making representation and even in the earlier litigation also had agitated and demanded parity.
It is also relevant to mention at this stage that inspite of the direction issued by this Hon'ble Court vide order dated 07.02.2013, the respondent had not paid any heed and the petitioner was compelled to file Contempt Petition No. 2121 of 2013 and in compliance of the order of the Writ Court, the impugned order dated 03.07.2013 had been passed. As per the claim of the petitioner, in fact vide order dated 03.07.2013, the Government had demoted the petitioner from Associate Professor to Assistant Professor specially in the background that the petitioner has been absorbed in the Medical College as Assistant Professor w.e.f. 15.06.2009 but in fact petitioner had already been promoted as Associate Professor w.e.f. 22.11.2010. The said order has been brought on record through RA-6. That since the aforesaid order dated 03.07.2013 was not stricto senso in compliance of the order dated 23.11.2012 and 07.02.2013. Therefore, the Hon'ble Contempt Court vide order dated 04.07.2013 had passed the following order:-
"Heard learned counsel for the parties.
This contempt petition has been filed with the allegation that despite the order dated 7.2.2013 passed in Writ Petition No. 65598 of 2010 the opposite party has neither considered the absorption of the applicant in the Medical College nor his subsequent promotion.
Upon notice, learned Standing counsel has produced an order passed by the opposite party stating that a decision has been taken for absorption of the applicant and he seeks time to bring it on record through an affidavit.
Let that be done.
However, a perusal of the said order does not show that the promotion of the applicant was considered, let this aspect be also considered.
Counsel for the applicant may file a reply, if any.
List in the next cause list. "
Bare perusal of the Contempt Court order dated 04.07.2013, it is clear that whatever the compliance had been filed by the respondent, the same was not in in consonance to the direction issued by the Division Bench and the promotion of the applicant had not been considered.
In compliance of the aforementioned direction, the present impugned order dated 30.07.2013 had been passed denying the claim of the petitioner to be promoted as Professor in the Medical College. Challenging the said order, the petitioner in Paragraph No. 29 of the writ petition has contended that the petitioner claim stand on better footing than Dr. D.C. Srivastava. The relevant portion is quoted below:-
" A. Petitioner was sent on deputation/transfer on service basis in Swaroop Rani Hospital affiliated to Moti Lal Nehru Medical College on 01.08.1987 whereas Dr. D.C. Srivastava was sent on deputation/transfer service in the year, 2004.
B. In so far as Educational qualification of petitioner is concerned M.Ch. (Urology, a super specialist degree in stem of Surgery) whereas Dr. D.C. Srivastava is master of Surgery (M.S.) in ortho. M.S. is post graduate degree whereas M.Ch. is post of P.G. Degree.
C. Petitioner has attributed 26 years of service in all whereas Dr. D.C. Srivastava has attributed practically 9 years of service in Moti Lal Nehru Medical College, Allahabad.
For the reasons disclosed hereinabove, once the State Government accepted that the case of the petitioner as similar to Dr. D.C. Srivastava then absorbing Dr. D.C. Srivastava on 29.01.2009 on the post of Assistant Professor with further promotion on the post of Associate Professor on 28.10.2009 (within 9 months) whereas in the case of the petitioner, promotion on the post of Professor has been denied. Impugned order cannot be countenance by any stretch of imagination."
It has also been contended that once the Hon'ble Court had relegated the issue before the State Government it was expected that for the purposes of the promotion on the post of Professor, the State Government did not ever cared to mention the name of Dr. D.C. Srivastava shelving the entire claim of the petitioner qua parity with Dr. D.C. Srivastava and it has also been contended that absolutely no opportunity of hearing of any kind was ever been given to the petitioner while passing the impugned order dated 03.07.2013. It is relevant to mention that the petitioner who is very accomplished surgeon, further holds M.Ch. Degree, which is granted pursuant to the super-specialization in particular branch. As per U.P. State Medical College condition of service of Teachers (second amendment), Rules, 2005 provides two years relaxation for promotion from the Assistant Professor to the Associate Professor, if person holds DM/M.Ch. In this regard, Rules known as The Uttar Pradesh State Medical Colleges Teachers' Service (Third Amendment) Rules, 2006 is being given below:-
"Sub-rule as hereby substituted (1) The following procedure shall be followed for personal promotion of a teacher to the higher posts belonging to category 'A'---
(i) A substantively appointed Lecturer shall, after completing three years satisfactory service, as such, be given personal promotion with his own post to the post of Assistant Professor.
(ii) A teacher who is substantively appointed on the posts of Lecturer or Assistant Professor shall, after completing four years satisfactory service as Assistant Professor and a teacher who possess a recognized D.M./M.Ch. qualification in the concerned specialty after completing two years satisfactory service as Assistant Professor, be given personal promotion with his own post to the post of Associate Professor.
(iii) An Associate Professor who is substantively appointed on the post of Lecturer or on the post of Assistant Professor or Associate Professor shall, after completing six years satisfactory service as Associate Professor or eight years satisfactory service as Assistant Professor and Associate Professor including at least four years service as Associate Professor shall be given personal promotion with his own post to the post of Professor:"
It is also relevant to mention at this stage that Medical Council of India prescribes the minimum qualifications for Teachers in Medical Institutions Regulations, 1998 specially for the Professor in general surgery as follows:-
"(A) Professor M.S. (Surgery)/ (i) As Reader/Associate Professor M.S. (General Surgery) in General Surgery/Surgery for four years in a recognized medical college.
Desirable
(ii) Minimum of four Research publications indexed in Index Medicus/national journal and one research publication in international journal".
In the present matter, counter affidavit has been filed by the respondent Nos. 1 and 2 and specially Paragraph Nos. 8, 9, 10 and 11 of the same, the respondents tried to improve their claim which were not taken into consideration while passing the impugned order, which is impermissible in law. The said ground had not been taken into account while rejecting the claim of the petitioner. Surprisingly, it had been observed specially in Paragraph No. 10 of the counter affidavit that some relaxation had been given while promoting Dr. D.C. Srivastava. The relevant Paragraph Nos. 8, 9, 10 and 11 of the counter affidavit is being quoted below:-
"8. That it is submitted that the petitioner is claiming parity with Dr. D.C. Srivastava case for providing him promotion on the post of Professor in the Department of Surgery in the instant College. Here is it submitted that Dr. D.C. Srivastava, Dr. Mayank Srivastava, Dr. V.K. Pandey and Dr. Alok Chandra have been promoted on the post of Associate Professor in year 2009, while the petitioner's case could not be considered at the level of the Principal Secretary of the Medical Education Department. Dr. D.C. Srivastava has been granted promotion on the post of Professor after rendering four years service of the post of Associate Professor by granting relaxation in the eligibility criteria for providing promotion on the post of Professor, but the case of the petitioner could not be considered for the same relaxation in the eligibility criteria.
9. That it is submitted that as per the norms and conditions provided in the provisions of Medical Council of India Act, the relaxation in the eligibility criteria can be granted under the certain conditions which may not be given in each and every cases in general manner. It is further submitted that as per the norms given in Clause 4 of the "Uttar Pradesh Government Servants Relaxation in Qualifying Service for Promotion Rules, 2006", it has been mentioned that 'in case a post is filled by promotion and for such promotion a certain minimum length of services is prescribed on the lower post or posts, as the case may be, and the required number of eligible persons are not available in the field of eligibility, such prescribed minimum length of service may be suitably relaxed up to fifty per cent by the Government in the Administrative Department in the consultation with the Personal Department of the Government, excluding the period of probation as laid down for the said lower post or posts, as the case may be'.
10. That it is submitted that at the time of consideration of providing promotion to Dr. D.C. Srivastava, it was very critical situation in the Department of Ortho for de-recognition of M.D. Degree of the same subject because of non-availability of Professor in the Department due to not fulfilling of the criteria of the M.C.I. Act. Therefore, considering the aspects of de-recognition M.D. Degree of Ortho Department, Dr. D.C. Srivastava was given relaxation in the eligibility criteria of service conditions in the vast interest of students of that subject as well as Administrative purposes of the institution in question.
11. That here in present context of the case of petitioner there are two Professors already available in the Surgery Department who are also senior than that of the petitioner. It is further to bring notice of this Hon'ble Court in the Surgery Department there are 11 sanctioned posts of teaching staff i.e. 02 posts of Professor - duly filled by regular Professor, 03 posts of reader- 02 posts are filled by regular readers, 06 posts of Lecturers- duly filled by 06 regular Lecturer and one post of access Lecturer is working on contractual basis. Therefore, it is very clear that against the sanctioned posts of 02 Professors, 02 regular Professors are already working, thus there is no requirement of the Professor in the Department of Surgery and there is also not such critical situation prevailing for de-recognition of the same subject. Therefore, there is no such bonafide reason for granting relaxation in service condition in case of the petitioner for providing him promotion with parity with Dr. D.C. Srivastava case. For kind perusal of this Hon'ble Court the copy of the list of sanctioned strength as well as working strength of teaching staff in Department of Surgery in Medical College, Allahabad is being appended here with and marked as Annexure No. C.A.-02 to this affidavit."
Surprisingly and ironically while considering the claim of the petitioner the answering respondent had not considered the relevant material and specially the case of the petitioner for promotion which is being based on parity with Dr. D.C. Srivastava. In the counter affidavit, it is categorically mentioned that on account of a critical situation in the Department of Orthopedics for de-recognition of M.D. Degree of the same subject because of non-availability Professor in the Department due to non fulfilling of criteria of M.C.I. Act. Thereafter, considering all the aspects and keeping in mind, degree of M.D., degree of Ortho Department, Dr. D.C. Srivastava was given relaxation in the eligibility criteria of service for the vast interest of the student as well as administrative purposes of the Administration in question. Subsequently, the learned Standing Counsel through compilation has also filed relevant comparative status of all aforementioned doctors. The same is given as under:-
Ekksrh yky usg: esfMdy dkyst ,oa lEc) fpfdRlky;] bykgkcknA dz0 la0 fpfdRlk f'k{kd dk uke OkrZeku in uke foHkkx dk uke 'kklukns'kkuqlkj dk;Z&Hkkj xzg.k djus dh frfFk 'kklukns'kkuqlkj vkesyu dh frfFk IknksUufr dh frfFk osrueku@xzsM is 1 2 3 4 5 6 7 8 1 MkW0 Mh0lh0 JhokLro vkpk;Z vfLFk jksx foHkkx m0iz0 'kklu ds vkns'k la0&lh0,e0&02 @71&1&2004&bZ0&117@2001 fnukad 30-01-2004 }kjk ih0,e0,p0,l0 laoxZ ls lsokLFkkUrj.k ds vk/kkj ij fnukad 31-01-2004 dks dk;Z&Hkkj xzg.k fd;kA m0iz0 'kklu ds vkns'k la0&lh0,e0&136@71&1&08&bZ0&117@2001 fnukad 28-01-2009 lgk;d vkpk;Z& 29-01-2009 lg&vkpk;Z& 29-10-2009 vkpk;Z& 16-11-2012 37400&67000] 8900 2 MkW0 e;ad JhokLro lg&vkpk;Z Uks= foHkkx m0iz0 'kklu ds vkns'k la0&4196@71&01 2004&bZ0&194@2004 fnukad 17-03-2005 }kjk ih0,e0,p0,l0 laoxZ ls lsokLFkkUrj.k ds vk/kkj ij fnukad 19-03-2005 dks dk;Z&Hkkj xzg.k fd;kA m0iz0 'kklu ds vkns'k la0&lh0,e0&42@71&1&09&bZ0&117@2001 fnukad 15-06-2009 lgk;d vkpk;Z& 15-06-2009 lg&vkpk;Z& 22-11-2010 37400&67000] 8700 3 MkW0 oh0ds0 ik.Ms;
lg&vkpk;Z LktZjh foHkkx m0iz0 'kklu ds vkns'k la0& ;w0v0 46@71&01-2005&th0&98@2005 fnukad 31-08-2005 }kjk ih0,e0,p0,l0 laoxZ ls lsokLFkkUrj.k ds vk/kkj ij fnukad 24-09-2005 dks dk;Z&Hkkj xzg.k fd;kA m0iz0 'kklu ds vkns'k la0&lh0,e0&42@71&1&09&bZ0&1 17@2001 fnukad 15-06-2009 lgk;d vkpk;Z& 15-06-2009 lg&vkpk;Z& 24-09-2012 37400&67000] 8700 4 MkW0 vkyksd pUnzk lg&vkpk;Z Vh0ch0 psLV foHkkx m0iz0 'kklu ds vkns'k la0&4745@71&1&2005&b&65@2005 fnukad 28-10-2005 }kjk ih0,e0,p0,l0 laoxZ ls lsokLFkkUrj.k ds vk/kkj ij fnukad 29-10-2005 dks dk;Z&Hkkj xzg.k fd;kA m0iz0 'kklu ds vkns'k la0&lh0,e0&42@71&1&09&bZ0&1 17@2001 fnukad 15-06-2009 lgk;d vkpk;Z& 15-06-2009 lg&vkpk;Z& 20-10-2012 37400&67000] 8700 5 MkW0 fl)kFkZ lg&vkpk;Z LktZjh foHkkx m0iz0 'kklu ds vkns'k la0&lh0,e0 229@71&01-2004&bZ0&133@2004 fnukad 15-12-2004 }kjk ih0,e0,p0,l0 laoxZ ls lsokLFkkUrj.k ds vk/kkj ij fnukad 17-12-2004 dks dk;Z&Hkkj xzg.k fd;kA m0iz0 'kklu ds vkns'k la0&1289@71&1&2013&fjV&71@2010 fnukad 03-07-2013 lg&vkpk;Z& 22-11-2010 37400&67000] 8700 iz/kkukpk;Z After seeing the material on record, it is apparent that the petitioner had been attached in the Moti Lal Nehru Medical College, Allahabad on 10.05.1999 and due to paucity of Lecturer and Teacher in the Medical College vide order dated 15.12.2004 was transferred as Lecturer in the Surgery Department of Moti Lal Nehru Medical College, Allahabad. It is admitted situation that the petitioner had completed M.Ch. in the year 1997 prior to the engagement in the Medical College. It has also been brought on record through CA-1 that the petitioner vide order dated 15.12.2004 passed by the Secretary Medical Health, had been engaged as Lecturer in the Medical College for one year which had been time to time was extended. It is clear from the record that admittedly, the petitioner vide order dated 22.11.2010 has been promoted as Associate Professor but at the same time it is also relevant to highlight at this stage that while passing the impugned order, the parity as claimed by the petitioner alongwith other doctors had not been considered in correct perspective and it has been said that the petitioner's right to get the Professorship would only accrue on completion of four years as Associate Professor i.e. 22.11.2014.
It is also noteworthy that while passing the earlier order dated 03.07.2013, the Principal Secretary while considering the claim of the petitioner have clearly mentioned in Paragraph No. 6 that the case of the petitioner is identical to other doctors. The relevant portion is being quoted below:-
6& mYys[kuh; gS fd ih0,p0,e0,l0 laoxZ ds fpfdRlkf/kdkjh MkW0 Mh0lh0 JhokLro dks esfMdy dkyst] bykgkckn dk dkfeZd ekus tkus ds fcUnq ij U;k; foHkkx dk ijke'kZ izkIr dj 'kklu ds dk;kZy; Kki la[;k lh0,e0&136@71&1&2008&bZ0& 117@2001] fnukad 29-01-2009 }kjk MkW0 Mh0lh0 JhokLro dks lgk;d vkpk;Z ds :i esa vkesfyr fd, tkus ,oa dk;kZy; Kki la[;k lh0,e0&42@71&1&2009&bZ0& 117@2001] fnukad 15-06-2009 }kjk MkW0 e;ad dqekj JhokLro] ,e0,l0 (vkiFkyeksyksth)] MkW0 oh0ds0 ik.Ms;] ,e0,l0 (ltZjh), MkW0 vkykssd pUnzk (Vh0oh0 ,.M psLV) dks lgk;d vkpk;Z ds :i esa esfMdy dkyst] bykgkckn esa vkesfyr fd;s tkus dh Lohd`fr lEcU/kh vkns'k tkjh fd;k x;kA pWwafd MkW0 fl)kFkZ dk izdj.k MkW0 Mh0lh0 JhokLro] MkW0 e;ad dqekj JhokLro] MkW0 oh0ds0 ik.Ms;] MkW0 vkyksd pUnzk ds izdj.k dh HkkWfr gS] vr% MkW0 fl)kFkZ dks mDr fpfdRlk f'k{kdksa dh HkkWfr esfMdy dkyst] bykgkckn dk dkfeZd ekus tkus dk vkSfpR; LFkkfir gksrk gSA vr% lE;d fopkjksijkUr dk;kZy; Kki la[;k lh0,e0&42@71&1&2009&bZ0& 117@2001] fnukad 15-06-2009 ds dze esa Jh jkT;iky egksn; MkW0 fl)kFkZ dks esfMdy dkyst] bykgkckn esa mudh fof'k"Vrk esa lgk;d vkpk;Z ds :i esa Lohdkj fd;s tkus @vkesfyr fd;s tkus dh lg"kZ Lohd`fr iznku djrs gSaA rn~uqlkj MkW0 fl)kFkZ ds izR;kosnu fnukad 27-02-2009] 12-07-2009 ,oa 31-03-2010 ,rn~}kjk fuLrkfjr fd;s tkrs gSaA ts0ih0 'kekZ izeq[k lfpo It is also very surprising that while passing order dated 03.07.2013, the Principal Secretary had observed that the services of the petitioner would be absorbed in the Medical College since 15.06.2009 as Associate Professor and whereas Dr. D.C. Srivastava as Assistant Professor would be absorbed since 29.01.2009. The learned Standing Counsel who has brought on record, the credential of the aforementioned doctors also reveals that Dr. D.C. Srivastava had been absorbed as Assistant Professor on 29.01.2009 and within 9 months' time he had been given promotion as Assistant Professor on 29.10.2009 and thereafter as Professor on 16.11.2012 and in the case of the petitioner admittedly who had engaged in the Medical College since 1999 and finally as Lecturer had been engaged since 15.12.2004 and at time of initiation of his engagement in the Medical College he had M.S. Surgery and M.Ch. Urology and having 6 years teaching experience and that was the main reason for his engagement in the Medical College, if the person having M.Ch. Degree had been engaged in the year 2004 as a Lecturer. Whereas per the provisions of Rule 2005, a teacher who possess a recognized D.M. or M.Ch. qualification in the concerned specialty after completing two years satisfactory service as Assistant Professor be given personal promotion with his own post to the post of Associate Professor. In the present matter, inspite of the fact that the petitioner had been engaged as a Lecturer vide order dated 15.12.2004 alongwith M.Ch. qualification and admittedly had been promoted as Associate Professor on 22.11.2010 then in all circumstances he had definitely on better footing than Dr. D.C. Srivastava.
Bare perusal of the record shows that while engaging him in the Medical College his all qualifications specially 6 years teaching experience alongwith M.Ch. degree had been taken care of and that was the sole reason for engagement in the Medical College as Lecturer on 15.12.2004. In these circumstances, if the benefit of M.Ch. degree had been given due weightage while considering his promotion as Associate Professor then definitely after two years of his initial engagement as Lecturer on 15.12.2004, the petitioner had become entitle for next promotion as Associate Professor on 15.12.2006 (with two years relaxation on account of holding M.Ch. degree) but the reason best know to the respondents such benefit had not been conferred to the petitioner at the relevant time.
It is admitted position which is apparent from the counter affidavit that great relaxation had been provided to Dr. D.C. Srivastava, no doubt under some peculiar circumstances. Therefore, at this stage, while considering the claim of the petitioner for promotion qua to Dr. D.C. Srivastava, we hold that even though the claim of the petitioner had accrued much earlier to Dr. D.C. Srivastava but we hold the claim of the petitioner is also justified and entitle to get notional benefit of promotion as Associate Professor since 29.10.2009 on the date, the same had been conferred to Dr. D.C. Srivastava. Therefore, in these circumstances, if the same benefit as notional benefit is being provided to the petitioner as Associate Professor since 29.10.2009, the petitioner would also be entitled for the promotion on the post of Professor since 29.10.2013. Therefore, under these circumstances, we hold that the present case is of discrimination and is hit by Article 14 of the Constitution of India. Therefore, the order dated 30.07.2013 is quashed and we hold that the petitioner is also liable to be promoted as Professor since 29.10.2013 on the basis of the observations made as above.
Respondents are directed to comply the order forthwith. In the aforementioned facts and circumstances, it reveals that pick and choose policy had been adopted by the respondents and grave injustice had been done against the petitioner.
In view of above, the writ petition is allowed.
Order Date :- 10.01.2014 Jaswant