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2017 DIGILAW 597 (UTT)

Ratnesh Kumar v. State of Uttarakhand

2017-11-09

K.M.JOSEPH, V.K.BIST

body2017
JUDGMENT : K.M. Joseph, J. Since these two writ petitions raise common issues, we are disposing of the same by the following common judgment. 2. Petitioners have approached this Court seeking the following relief’s: “(i) Issue a writ, order or direction in the nature of Mandamus commanding the opposite parties to examine the case of the petitioners as per direction of the Supreme Court of India and provide all the incidental and consequential benefits including promotion and position on the basis of seniority. (ii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to extend the benefits of the selection grade as per Government Order dated 29.12.1997 issued by the State of U.P. in respect of selection grade of Rs. 4500-5700 to those medical officers who have been promoted on the cadre post of Joint Director on or before 01.01.1996. (iii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to examine the case of the petitioners and provide the incidental and consequential benefits including the arrears of the salary with interest as per judgment and order dated 24.07.2014 from the date of notional promotion.” 3. Briefly put, the case of the petitioners is as follows: Petitioners were appointed as Medical Officers in the State of U.P. There is reference to litigation at three stages in regard to the seniority and appointments of Doctors. The first case was with regard to the judgment in the matter of State of U.P. Vs. Dr. H.C. Mathur (SLP No. 13840 of 1992, decided on 24.11.1992). Secondly, it was followed by the decision in the matter of State of U.P. & others Vs. Dr. R.K. Tandon & others reported in (1996) 10 SCC 247 . Lastly, there is a decision in the matter of Dr. Chandra Prakash and others Vs. State of U.P. and others reported in (2002) 10 SCC 710 . The Hon’ble Supreme Court disposed of Dr. Chandra Prakash’s case with the following directions: “48. Dr. R.K. Tandon & others reported in (1996) 10 SCC 247 . Lastly, there is a decision in the matter of Dr. Chandra Prakash and others Vs. State of U.P. and others reported in (2002) 10 SCC 710 . The Hon’ble Supreme Court disposed of Dr. Chandra Prakash’s case with the following directions: “48. We accordingly allow the writ petitions 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 doctors in the PMHS cadre from the date of the orders of their initial appointment within a period of six weeks from the date of this order and give all consequential benefits including promotions and positions on the basis of such seniority list; and (3) those doctors who were selected in 1972 and 1977-78-79 by PSC and who were not issued any orders of appointment and joined the service on the basis of Tandon case, will be treated as having been appointed on the date that they actually joined the service and their seniority will be counted from that date. There will be no order as to costs.” 4. In short, the case of the petitioners is that they have not been given the benefits in regard to Annexure-17 of WPSB No. 333 of 2014, which we treat as a leading case. We notice paragraph nos. 26 & 29, by which Annexure Nos. 14 & 17 are marked, which read as follows: “26. That in order to comply the order of the Supreme Court of India on 02.02.2005 the State of U.P. issued office memo whereby they have notionally promoted retired medical officers upto the Joint Director cadre and vide order dated 20.05.2005 they have notionally promoted serving medical officers upto the cadre post of Joint Director upto the seniority no. 1347 with effect from 01.01.1986, upto the seniority no. 3220 with effect from 10.05.1990, upto the seniority no. 3528 with effect from 27.04.1995, wherein the name of the petitioners finds places. In the above government order dated 20.05.2005, it has been mentioned that the notional promotion is being made in the pay scale applicable at relevant time. The copy of government order dated 20.05.2005 is being annexed herewith as Annexure No. 14 to the writ petition. 29. 3528 with effect from 27.04.1995, wherein the name of the petitioners finds places. In the above government order dated 20.05.2005, it has been mentioned that the notional promotion is being made in the pay scale applicable at relevant time. The copy of government order dated 20.05.2005 is being annexed herewith as Annexure No. 14 to the writ petition. 29. That it is submitted that without finalizing the seniority of medical officers working in the State of Uttarakhand on the basis of seniority list dated 05.06.2003 of the State of U.P. vide order dated 31.01.2007 the State of Uttarakhand notionally promoted the petitioner on the cadre post of Joint Director with effect from 01.01.1986, 10.05.1990 and 27.04.1995 and declined to pay the arrears of the salary. Though in the judgment and order dated 04.12.2002 Hon’ble Supreme Court of India had clearly directed the State Government to give all consequential benefits including promotions and positions on the basis of such seniority. But neither State of U.P. nor State of Uttarakhand has extended the benefits of the as per judgment of the Hon’ble Supreme Court of India. The copy of the office memo dated 31.01.2007 is being annexed herewith as Annexure No. 17 to the writ petition.” 5. We also deem it necessary to notice paragraph nos. 27 & 28. Same read as under: “27. That State Government promoted the petitioners notionally, but not given the arrears of salary though theory of no-work-no-pay is not applicable in the case of petitioners as there is no fault on their parts. Even despite pay scale applicable at the relevant time has not been given to the petitioners. 28. That it is submitted though in the part compliance of the judgment and order of the Supreme Court of India the opposite parties notionally promoted the petitioners and other similarly situated medical officers on the cadre post of Joint Director in the pay scale applicable at the relevant time. As per government order dated 29.12.1997 which has been clarified vide government order dated 31.07.2008 the medical officers who have been promoted on and before 01.01.1996 on the cadre post of Joint Direction in the pay scale of s. 3700-5000 are entitle for selection grade of Rs. 4500-5700. But the said pay scale has not been given to the petitioners. As per government order dated 29.12.1997 which has been clarified vide government order dated 31.07.2008 the medical officers who have been promoted on and before 01.01.1996 on the cadre post of Joint Direction in the pay scale of s. 3700-5000 are entitle for selection grade of Rs. 4500-5700. But the said pay scale has not been given to the petitioners. The copy of the government order dated 29.12.1997 and 31.07.2008 are being annexed herewith as Annexure No. 15 and 16 to the writ petition.” 6. Subsequently, petitioners have filed applications for amendment of the writ petitions, when they were confronted with the contents of Annexure-17 order. Annexure-17 order purports to provide that, while they were given benefit of notional promotion upto the post of Joint Director, which is to be filled up on the basis of seniority and further post are to be filled up on the basis of merit, they would get the pay and benefit from the day, on which they actually took over the charge. This order was not challenged at the time when they filed the writ petition. It may be noticed that the writ petition was itself filed only in September, 2014. Going by the dates of retirement of the petitioners, it would appear that the last retirement from amongst the petitioners took place in the year 2009. 7. Confronted with Annexure-17 order, they filed an application for amendment. They have also filed an affidavit in support of the application for amendment. Both being necessary for the purpose of adjudication, we extract the same: Application for Amendment: “1. That the petitioners may permitted to add following paras, after para 40 of memo of writ petition: 40A. That the judgment and order dated 04.12.2002 passed by the Hon’ble Supreme Court of India in writ petition No. 43 of 1998 is rem in its nature. Thus besides others as per judgment and order dated 17.10.2014 passed by the Hon’ble Supreme Court of India in the case of State of Uttar Pradesh and others Vs. Arvind Kumar Srivastava and others (2015) 1 SCC 347 , it is duty of the opposite parties to give the benefits to all similarly situated medical officers, either they have approached or not approached any court of law. 40B. That as per law laid down by the Hon’ble Supreme Court of India beside others in the case Purnendu Mukhopadhyay & others Vs. 40B. That as per law laid down by the Hon’ble Supreme Court of India beside others in the case Purnendu Mukhopadhyay & others Vs. V.K. Kapoor & another reported in (2008) 4 SCC 403, B. Prabhakar Rao & others Vs. State of Andhra Pradesh & others reported in 1985 (Supp) SCC 432 and D.S. Nakara & others Vs. Union of India reported in (1983) 1 SCC 305 being welfare State, the State cannot make any discrimination between and amongst the equals. 40C. That it is submitted that State of U.P. as well as State of Uttarakhand extending the benefits of Dr. Chandra Prakash Case to some of the medical officers and denying to extend the benefits to some of the medical officers under the garbe of the office memo dated 31.01.2007, copy whereof have already been annexed as annexure no. 17 at page no. 103 of the writ petition. 40.D That after office memo dated 31.01.2007 vide office memo dated 21.06.2008 (annexure no. 18 of the page no. 104 of the writ petition), they have extended the benefits and revise the pay-scale of several medical officers. 40E. That not only in the State of U.P. but in compliance of the order of the Hon’ble Supreme Court of India, the State of Uttarakhand also by way of adopting the theory of pick and choose, extended the benefits of Dr. Chandra Prakash and have given the arrears of the salary and pension to Dr. D.P. Bahuguna, Dr. U.C. Srivastava, Dr. H.K. Srivastava. The copy of the orders dated 30.09.2015, 03.10.2015, 06.10.2015 and 09.12.2015 are being annexed herewith as Annexure no. 21A to the writ petition. 2. That the Hon’ble Court may kindly be pleased to permit the petitioners to add following grounds in the grounds part of the writ petition. (v) Because in order to extend the benefits of the Dr. Chandra Prakash, opposite parties are adopting the theory of pick and choose, though as per service jurisprudence and judgment of the Hon’ble Court being welfare State, the State have no authority make discrimination between and amongst the equals. (w) Because on one hand under garbe of the office memo dated 23.01.2007, opposite parties are not giving the arrears to the petitioners, on other hand they are paying the arrears to others. Thus the office memo dated 23.01.2007 is liable to be quashed. 3. (w) Because on one hand under garbe of the office memo dated 23.01.2007, opposite parties are not giving the arrears to the petitioners, on other hand they are paying the arrears to others. Thus the office memo dated 23.01.2007 is liable to be quashed. 3. That the Hon’ble Court may kindly be pleased to be add following prayer in the prayer part of the writ petition. III.A Issue a Writ, Order or Direction in the nature of certiorari quashing the office memo dated 21.01.2007 (contained in annexure no. 17 to the writ petition).” Relevant portion of the affidavit filed in support of the Application for Amendment: “2. That full facts and relevant records had already been stated and annexed alongwith writ petition and affidavit dated 17.05.2015 same are being reiterated as to be correct. Moreover it is submitted that entire dispute of the medical officers has been settled by the Hon’ble Supreme Court of India in the case of Dr. Chandra Prakash. While deciding and settling the dispute of medical officers of the department, but instead of acting accordingly opposite parties are generating dispute and litigation. It is further submitted that the Hon’ble Supreme Court of India has issued a general mandamus directing the opposite parties to determined and circulate the seniority of the medical officers and provide all the incidental and consequential benefits including promotion and position on the basis of such seniority list. But instead of complying and implementing the judgment and order of the Hon’ble Supreme Court of India, the opposite parties are adopting the theory of pick and choose, and generating multiple litigation and dispute. 3. That by means of the present writ petition, petitioners prayed for writ of mandamus commanding the opposite parties to examine the case of the petitioners as per direction of the Hon’ble Supreme Court of India and provide all the incidental and consequential benefits, on the basis of seniority list and also prayed for revision of the pay scale as per government order dated 29.12.1997 and also prayed for benefits of judgment and order dated 24.07.2014. 4. 4. That as stated in the writ petition incompliance of the judgment and order dated 04.12.2002 passed by the Hon’ble Supreme Court of India vide order dated 05.06.2003 the State of U.P. issued seniority list, wherein the name of the petitioners finds place subsequently referring the order dated 05.06.2003 on 30.09.2003, the State of Uttarakhand also issued a seniority list in that too the name of petitioners find place. 5. That as per direction of the Hon’ble Supreme Court of India vide order dated 20.02.2005 and 20.05.2005 State of U.P. issued the Government Order whereby State of U.P. notionally promoted medical officers of the post of Joint Director and denied to pay the arrears of the salary and promotion of higher post. The said list the name of the petitioners find place. 6. That thereafter, State of Uttarakhand also issued a office memo dated 31.01.2007, whereby State of Uttarakhand promoted 103 working/retired medical officers upto the post of Joint Director, but denied to pay the arrears of the salary on notional promotion, in that too the name of petitioners find place. 7. That on one hand the State of U.P. and State of Uttarakhand denied to pay the arrears of the salary on other hand as stated in the writ petition, they have paid the arrears of the salary to several medical officers either they have worked in State of U.P. or State of Uttarakhand. But they are not revising the pay scale of the petitioners and not paying the arrears of the salary and arrears of pension payable/admissible to the petitioners on account of notional promotion.” 8. The amendments were filed only in the year of 2016. Objections have been filed. The objections filed are also extracted hereunder: “3. That the contents of para 1 of the affidavit supporting the Amendment Application require no comments. 4. That the contents of para 2 to 11 of the affidavit supporting the Amendment Application are not admitted in the manner stated. In reply thereto it is submitted that the office memorandum dated 31.01.2007 has been issued in compliance of the Hon’ble Supreme Court’s order dated 04.12.2002 passed in W.P.43/1998 Dr. Chandra Prakash & others Vs. 4. That the contents of para 2 to 11 of the affidavit supporting the Amendment Application are not admitted in the manner stated. In reply thereto it is submitted that the office memorandum dated 31.01.2007 has been issued in compliance of the Hon’ble Supreme Court’s order dated 04.12.2002 passed in W.P.43/1998 Dr. Chandra Prakash & others Vs. State of U.P. & others, wherein the Hon’ble Supreme Court allowed the writ petitions declaring that the writ petitioners were not within the purview of the 1979 Rules and directed the State Government to fix the seniority of all Doctors in P.M.H.S. cadre from the date of orders of their initial appointment and to give all consequential benefits. It has been provided that those Doctors who were selected in 1972 and 1977-78-79 by the Public Service Commission who were not issued any appointment orders and joined the service on the basis of Tandon’s case would be treated to have been appointed on the date of actual joining and their seniority would be counted from that date. It is stated that pursuant to the aforesaid orders the State of U.P. vide order dated 05.06.2003 issued final amended seniority list of P.M.H.S. Medical Officers and thereafter the notional promotion to the post of Senior Class and Joint Director was sanctioned as per the next below rules from the date of the promotion of juniors, however, specifying that the actual promotion would be applicable from the date of joining and the remaining salary of the period of notional promotion would not be given. It is further stated that in compliance of the Supreme Court’s order dated 04.12.2002 the order dated 31.01.2007 was passed thereby a total of 103 Medical Officers were given notional promotion to senior class and out of them 67 Medical Officers had been given notional promotion to the post of Joint Director, however, the salary for the period of notional was not given on the Principle of no work no pay. it is stated that in pursuance to the order dated 31.01.2007 many Medical Officers have been paid the retrial benefits based on notional promotion and any challenge to the aforesaid order dated 31.01.2007 would result into multifarious Litigation.” 9. We heard Mr. Hari Prasad Gupta, learned counsel appearing on behalf of the petitioners and Mr. C.S. Rawat, Additional Chief Standing Counsel with Mr. Pradeep Joshi, Standing Counsel for the State of Uttarakhand. We heard Mr. Hari Prasad Gupta, learned counsel appearing on behalf of the petitioners and Mr. C.S. Rawat, Additional Chief Standing Counsel with Mr. Pradeep Joshi, Standing Counsel for the State of Uttarakhand. 10. Learned counsel for the petitioners would point out that, contrary to the judgment of the Hon’ble Supreme Court in Dr. Chandra Prakash’s case, though, they have been given notional promotion upto the level of Joint Director, they have not been given the consequential benefits including the pay scale, which is appended in Annexure-17 order. 11. When the issue of laches was raised, the learned counsel appearing for the petitioners would address the following contentions before us: In the first place, he would submit that the judgment in Dr. Chandra Prakash’s case is the judgment in rem. According to him, the petitioners were under the impression that being the judgment in rem, they would be given the benefit and they are entitled to get the benefit in terms of the direction issued in Dr. Chandra Prakash’s case. They have however moved Annexure-19 representation dated 22.06.2014 just preceding the filing of the writ petitions followed by Annexure-20 representation dated 25.08.2014 and another representation, namely, Annexure-21. In view of the judgment, which came to be pronounced in the matter of State of U.P. and another vs. Dr. B.B.S. Rathore & another and in the connected cases which was pronounced in 2014, it appears that the petitioner has addressed the first representation on 22.06.2014 followed by two other representations. 12. The learned counsel for the petitioners would emphasize that judgment in Dr. Chandra Prakash’s case was the judgment in rem. Being a judgment in rem, he relies on the judgment of Hon’ble Apex Court in the matter of State of Uttar Pradesh and others Vs. Arvind Kumar Srivastava and others, reported in (2015) 1 SCC 347 . Therein, the Hon’ble Apex Court proceeded to consider the issue relating to laches and proceeded to hold as follows: “22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under: 22.1 The normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under: 22.1 The normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. 22.2 However, this principle is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. 22.3. However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India). With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.” 13. We will proceed on the assumption that the judgment of the Hon’ble Apex Court in Dr. Chandra Prakash’s case is a judgment in rem. This we do as in the direction given by the Hon’ble Apex Court, the Hon’ble Apex Court has proceeded to direct that the seniority of all the Doctors should be fixed and they should be given only consequential benefits including promotion and position on the basis of such seniority. 14. As already noticed, the last year, in which the retirement amongst the petitioners took place, was the year 2009. It is quite clear that petitioners cannot get the relief unless and until Annexure-17 order is quashed. There is no case for the petitioners that the petitioners came to know of Annexure-17 only later. In fact, it is quite clear that they have been favoured with notional promotion as Joint Director; but, they have been, no doubt, declined the benefit of salary and salary is to be paid from the day from which they actually started discharging duties as Joint director. One writ petition was filed in September, 2014 and, in fact, the other writ petition was filed only in 2015. We would think that this is a case, where the Government of Uttarakhand has, in purported compliance with the judgment of the Hon’ble Apex Court, passed the order in the year 2007 and purported to give notional promotion in regard to the post of Joint Director based on seniority. 15. We would think that this is a case, where the Government of Uttarakhand has, in purported compliance with the judgment of the Hon’ble Apex Court, passed the order in the year 2007 and purported to give notional promotion in regard to the post of Joint Director based on seniority. 15. Quite clearly, the petitioners were deemed to have accepted the same, as they did not do anything about it for a period of seven years. Apparently, the Government has purported in this case to give effect to the judgment of the Hon’ble Apex Court. Going by the contents of the order, it must be deemed that it must have been served on the petitioners. At least, the petitioners have no case otherwise. Petitioners were, in fact, given the benefit of notional promotion. Therefore, in such circumstances, as the petitioners for seven years of the order being passed did not move the Court, we would think that we should not entertain the writ petitions in regard to giving the consequential benefits in the form of salary for the period they were given notional promotion. 16. There is a case of discrimination. The case, in short, is that, even after 2007, while petitioners have not been given the consequential benefits; three others have been given benefits. To the same, the answer is that they were persons, who were party in Appeal No. 3042 of 2010 filed by Dr. Chandra Prakash and others. It is pointed out that, pursuant to the order in Dr. Chandra Prakash’s case, on 04.12.2002, an O.M. was passed by the State of Uttar Pradesh finally fixing the seniority of Doctors of P.M.H.S. cadre. Thereafter, vide O.M. dated 02.02.2005, the State of U.P. gave notional promotion to those 1276 Medical Officers, who were entitled as per next below Rule, in which, names of three persons, namely, Dr. Umesh Chandra Srivastava, Dr. Devi Prasad Bahuguna and Dr. Hari Kishan Srivastava figured and they were included and given pay scale w.e.f. 16.03.1979 and notional promotion in the pay scale of Joint Director w.e.f. 01.01.1986. Thereafter, the State of Uttarakhand also issued the O.M. in the year 2007 giving notional promotion to those Medical Officers, who were entitled as next below Rule. 17. It is also pointed out that Dr. Umesh Chandra Srivastava and Dr. Thereafter, the State of Uttarakhand also issued the O.M. in the year 2007 giving notional promotion to those Medical Officers, who were entitled as next below Rule. 17. It is also pointed out that Dr. Umesh Chandra Srivastava and Dr. Devi Prasad Bahuguna, in fact, filed writ petition in the year 2004 in the High Court of Allahabad and Dr. Hari Kishan Srivastava filed a separate writ petition, in which the State of Uttarakhand was made party and certain directions were issued on the same and finally they also approached the Hon’ble Apex Court preferring S.L.P. No. 3042 of 2010 and that is how they were given the benefit. These are all the submissions, which were made at the bar. 18. Incidentally, we may also notice that the Hon’ble Apex Court in the matter of State of U.P. and others vs. Dr. B.B.S. Rathore, has held as follows: “However, we make it clear that with regard to others, who have not been granted arrears of salary and have not moved before any other Court of law or this Court, we have not expressed any opinion. They cannot claim benefit automatically in view of the order passed in these cases. Their case may be determined individually on the merit of each case.” 19. No doubt, it could be argued that what the Hon’ble Apex Court intended was that nobody would automatically get the benefit of that judgment and each case would have to be decided on merits. 20. We do not think that, in the facts of this case, we should permit the amendment of the petitions whereby challenge is sought, highly belatedly, to the order dated 31.01.2007. 21. Finally, there is a complaint from the petitioners in regard to benefit under the order dated 31.01.2007. The pay scale, which is already mentioned in Annexure-17, is not fixed for the purpose of giving the pensionery benefit. 22. We would think that this is a matter, which must be looked into. Accordingly, while we decline the other relief’s sought in the writ petitions, we direct that the first respondent will look into the complaint of the petitioners that the pay scale of Joint Director, which is mentioned in Annexure-17 order, has not been fixed for the purpose of pension. Accordingly, while we decline the other relief’s sought in the writ petitions, we direct that the first respondent will look into the complaint of the petitioners that the pay scale of Joint Director, which is mentioned in Annexure-17 order, has not been fixed for the purpose of pension. A decision will be taken in this regard within a period of two months from the date of production of a certified copy of this judgment. The decision will be taken on Annexure-20 representation limited to the above aspect only. 23. The writ petitions, are accordingly, disposed of. 24. There will be no order as to costs.