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2013 DIGILAW 1852 (ALL)

Virendra Singh Pachahara v. State of U. P.

2013-07-15

ASHOK PAL SINGH, DEVI PRASAD SINGH

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JUDGMENT Heard, learned Counsel for the petitioners and learned Standing Counsel and perused the records. With the consent of the learned Counsels for the parties the writ petition is disposed of at the admission stage itself. 2. Instant writ petition which has been preferred under Article 226 of the Constitution of India is against the order dated 12.5.2009 by which representations submitted by the petitioners for payment of dues from the date of notional promotion have been rejected. 3. Learned Counsel for the petitioners submits that in pursuance to the case reported in 2002 (10) SCC 710 Dr. Chandra Prakash Vs. State of U.P. & Others, the State Government has extended benefit from the date of notional promotion and the arrears of salary has been granted to some of the Doctors while others have been denied. The State Government has initiated proceedings under pick and choose manner. 4. The observations made by Hon'ble Supreme Court reported in 2002 (10) SCC 710 Dr. Chandra Prakash Vs. State of U.P. & Others, is reproduced as under: - “We accordingly allow the writ petition and declare that (1) the writ petitioners are not within the purview of the 1979 Rules (2) the State Government will fix the seniority of all the doctors in PMHS Cadre from the date of the orders of their initial appointment within a period of 6 weeks from the date of this order and give all consequential benefits including promotion and position on the basis of such seniority (3) those doctors who were selected in the year 1972 and 1977-1978-1979 by the PSC and who were not issued any orders of appointment and join on the basis of Tondon's case will be treated as having been appointed on the date that they actually join the service and their seniority will be counted from that day.” 5. It appears that in pursuance of this order passed by Hon'ble Supreme Court, the State Government issued different government orders with regard to selection grade. By the different Government Orders State Government has provided selection grade in the pay scale of 4500-5700 from the date of notional promotion and also took a decision to promote doctors in order of seniority and consider them for the post of Joint Directors in accordance with service rules. 6. Paragraph nos.-40 and 41 of the writ petition which disclose that in pursuance to Dr. 6. Paragraph nos.-40 and 41 of the writ petition which disclose that in pursuance to Dr. Chandra Prakash Case (supra), government order was extended to some of the doctors only. Paragraphs nos.-40 and 41, are reproduced as under: - “40- That it is submitted that the State Government has issued office memo dated 21.11.2003 and 2.12.2003 in compliance of the judgment and order passed by the Hon'ble High Court in the matter of Dr. V.P.Goyal regarding grant of the personal pay scale of Rs. 3700-5000 and Rs. 4500-5700 w.e.f. date of his notional promotion at par with the junior w.e.f. 6.6.1987 with interest at the rate of 12%. The copy of the above letter dated 21.11.2003 and 2.12.2003 are being annexed herewith as Annexure No. 25 A and 25 B. 41- That referring the various Government order, Government issued Government order dated 29.12.1997, regarding grant of Selection Grade of Rs. 4500-5700 to the cadre post of the Joint Director of the PMHS cadre, providing therein that those officers of the PMHS cadre who have been promoted prior to the 1.1.1996 on the post of Joint Director in the pay scale of Rs. 3700-5000, they shall be granted the personal pay scale of Rs. 4500-5700 from the date of their promotion, whoever in respect of those officer of PMHS Cadre who have been promoted on the post of Joint Director in the pay scale of Rs. 3700-5000 after 01.01.1996, their proposal shall be made available to the government regarding grant of Selection Grade of Rs. 4500-5700. Since the petitioner have been granted promotion w.e.f. 10.5.1990 of the cadre post of Joint Director, thus they are entitle for fixation of their pay scale w.e.f. 10.5.1990 accordingly. The copy of the government order dated 29.12.1997 is being annexed herewith as Annexure No.-26. “ 7. While filling the counter affidavit by the State no reply has been given to the said paragraphs 40 and 41. It has been only stated that these paragraphs need no comments. 8. We fail to understand how State Government can make a statement that these paragraphs need no comments. In the absence of any specific reply to the averments contained in paragraphs 40 and 41 of the writ petition, an inference should be drawn that the averments made with regard to promotion of certain doctors, seems are correct. 8. We fail to understand how State Government can make a statement that these paragraphs need no comments. In the absence of any specific reply to the averments contained in paragraphs 40 and 41 of the writ petition, an inference should be drawn that the averments made with regard to promotion of certain doctors, seems are correct. It is well settled law that in case office memorandum was issued to extend of the benefit of the case of Dr. Chandra Prakash (Supra) then it must be applied equally to all the doctors. 9. Keeping in view the factual matrix on record, it is clear that the impugned order dated 12.5.2009 has been passed by the State Government without application of mind. 10. In view of above the writ petition deserves to be allowed and is hereby allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 12.5.2009 and commanding the State Government to provide promotion and pay scale and promotional avenues under the judgment of Hon'ble Supreme Court in the case of Dr. Chandra Prakash (Supra) expeditiously, say, within a period of three months from the date of production of a certified copy of the present order. 11. Subject to above the writ petition is allowed .