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2020 DIGILAW 479 (ALL)

Virendra Kumar v. State Of U. P.

2020-02-12

RAJESH SINGH CHAUHAN

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JUDGMENT : 1. Heard Sri Rakesh Kumar Chaudhary, learned counsel for the petitioners, Dr. Udai Veer Singh, learned Additional Chief Standing Counsel for the State-respondents and Sri Subhash Vidyarthi, learned counsel for the opposite party no. 3. 2. By means of this writ petition, the petitioners have prayed for the following reliefs:- '(i) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to forthwith implement the recommendation of the Departmental Promotion Committee dated 20.07.2019 and letter issued on 25.07.2019, annexed as Annexure No.1 to this writ petition, and issue order of promotion to the post of Professor in respect of petitioners. (ii) Issue a writ, order or direction in the nature of certiorari quashing the advertisement dated 20.11.2019 issued by the opposite party No.2, annexed as Annexure No.7 to this writ petition. 3. The brief facts of the case are that the petitioner No.1 is presently serving on the post of Reader with effect from 08.09.2009 in the department of Kaumarbhartya (Pediatric) and presently posted at Rajkiya Ayurvedic College, Varanasi. The petitioner No.2 is serving on the post of Reader with effect from 28.06.2010 in the department of Swasthvratta (Ayurvedic Social & Preventive Medicine) and presently posted at Rajkiya Ayurvedic College, Handia, Prayagraj. The petitioner No.3 is serving on the post of Reader with effect from 28.06.2010 in the department of Shalakya Tantra (ENT & Eye) and presently posted at Rajkiya Ayurvedic College, Lucknow. The petitioner No.4 is serving on the post of Reader with effect from 28.06.2010 in the department of Rog Nidan (Pathology) and presently posted at Rajkiya Ayurvedic College, Muzaffarnagar. The petitioner No.5 is serving on the post of Reader with effect from 28.06.2010 in the department of Rog Nidan (Pathology) and presently posted at Rajkiya Ayurvedic College, Lucknow. The petitioner No.6 is serving on the post of Reader with effect from 31.01.2012 in the department of Rog Nidan (Pathology) and presently posted at Rajkiya Ayurvedic College, Jhansi. The petitioner No.7 is serving on the post of Reader with effect from 11.10.2011 in the department of Rog Nidan (Pathology) and presently posted at Rajkiya Ayurvedic College, Bareilly. The petitioner No.8 is serving on the post of Reader with effect from 19.08.2010 in the department of Rachana Sharir (Anatomy) and presently posted at Rajkiya Ayurvedic College, Handia, Prayagraj. The petitioner No.7 is serving on the post of Reader with effect from 11.10.2011 in the department of Rog Nidan (Pathology) and presently posted at Rajkiya Ayurvedic College, Bareilly. The petitioner No.8 is serving on the post of Reader with effect from 19.08.2010 in the department of Rachana Sharir (Anatomy) and presently posted at Rajkiya Ayurvedic College, Handia, Prayagraj. The petitioner No.9 is serving on the post of Reader with effect from 11.10.2011 in the department of Kriya Sharir (Physiology) and presently posted at Rajkiya Ayurvedic College, Lucknow. The petitioner No.10 is serving on the post of Reader with effect from 02.08.2010 in the department of Dravyuguna (Herbal Pharmacology) and presently posted at Rajkiya Ayurvedic College, Pilibhit. The petitioner No.11 is serving on the post of Reader with effect from 28.11.2011 in the department of Swasthvratta (Ayurvedic Social and Preventive Medicine) and presently posted at Rajkiya Ayurvedic College, Pilibhit. The petitioner No.12 is serving on the post of Reader with effect from 11.10.2011 in the department of Swasthvratta (Ayurvedic Social & Preventive Medicine) and presently posted at Rajkiya Ayurvedic College, Bareilly. The petitioner No.13 is serving on the post of Reader with effect from 28.06.2010 in the department of Prasuti Tantra Evem Stri Roga (Gynecology) and presently posted at Rajkiya Ayurvedic College, Varanasi. The petitioner No.14 is serving on the post of Reader with effect from 25.08.2010 in the department of Prasuti Tantra Evam Stri Roga (Gynecology) and presently posted at Rajkiya Ayurvedic College, Lucknow. The petitioner No.15 is serving on the post of Reader with effect from 19.11.2010 in the department of Shalakya Tantra (ENT & Eye) and presently posted at Rajkiya Ayurvedic College, Varanasi. The petitioner No.16 is serving on the post of Reader with effect from 28.03.2011 in the department of Agad Tantra Evam Vidhi Ayurveda (Ayu Jurisprudence & Toxicology) and presently posted at Rajkiya Ayurvedic College, Pilibhit. The petitioner No.17 is serving on the post of Reader with effect from 29.02.2012 in the department of Agad Tantra Evam Vidhi Ayurveda (Ayu Jurisprudence & Toxicology) and presently posted at Rajkiya Ayurvedic College, Jhansi and the petitioner No.18 is serving on the post of Reader with effect from 29.06.2010 in the department of Shalya Tantra (Surgery) and presently posted at Rajkiya Ayurvedic College, Pilibhit. 4. 4. The seniority list of the Readers was finalized after inviting and considering the objections and final seniority list was issued by the opposite party No.1 through office memorandum dated 17.02.2019. Thereafter, the seniority list was circulated by the Director, Ayurvedic Services, U.P. Lucknow vide letter dated 21.02.2019. 5. The present petitioners have been working on the post of Reader from the year 2009 to 2012 respectively and are said to be eligible to be promoted on the post of Professor in view of the provisions of Rule 5 of Uttar Pradesh Rajya Ayurvedic Aur Unani Mahavidyalaya Adhyapko Ki Sewa Niyamawali, 1990 (here-in-after referred to as the 'Niyamawali, 1990'). It has been noticed that there are total 12 departments under the Ayurvedic Directorate in the name of (1) Sanhita Sanskrit Aur Siddhant (2) Rachana Sharir (3) Kriya Sharir (4) Drivyagun (5) Swastha Vrit (6) Rog Nidan (7) Agad Tantra Evam Vidhi Ayurved (8) Prasuti Tantra Evam Stri Rog (9) Kaumar Bhritya (10) Kaya Chikitsa (11) Shalya Tantra and (12) Shalakya Tantra. Further, all the aforesaid departments are separate and not inter changeable to each other. Readers working in a particular department may be promoted on the next higher post of Professor in their respective department only. 6. On 20.07.2019, a meeting of Departmental Promotion Committee (here-in-after referred to as the 'D.P.C.') was held for promotion to the post of Professor from the Readers by the U.P. Public Service Commission and the candidature of eligible Readers was considered for promotion in each department. The number of posts of Professor in each department are separate and accordingly promotion on the post of Professor was considered departmentwise by the D.P.C. on the very same date and was recommended by a common list. As per learned counsel for the petitioners, the list should not be common but separate one so as to avoid any confusion. 7. Learned counsel for the petitioners has drawn attention of this Court towards Annexure No.5 to the writ petition, which is a letter dated 13.09.2019 preferred by the opposite party No.1 to opposite party No.2 to furnish information regarding vacant posts of Professor departmentwise so that the Readers recommended by the D.P.C. for promotion may be promoted on the post of Professor. However, the vacancy position has not been apprised to the government for no cogent reasons to that effect inasmuch as by 13.09.2019 there was no impediment of any kind whatsoever. 8. Notably, one writ petition bearing W.P. No.6605 (S/S) of 2019; Smt. Rekha Bajpai v. State of U.P. & others and another writ petition bearing Writ Petition No.30102 (S/S) of 2019; Dr. Sharad Johri v. State of U.P. & others have been filed before this Court challenging the seniority position in respect of the department of Kaya Chikitsa inasmuch as both the aforesaid persons belong to Kaya Chikitsa Department. In the case of Dr. Sharad Johri (supra), this Court has granted an interim order dated 01.11.2019 restraining the respondents from making any appointment on the post of Professor in Government Ayurvedic Colleges, U.P. in furtherance of selection under challenge. For brevity, the order dated 01.11.2019 is being reproduced here-in-below:- 'Heard Sri Subhash Vidyarthi, learned counsel for the petitioner,learned Standing Counsel for respondent no. 1, Sri R.K.Upadhyay, learned counsel for respondent no. 2 and Sri Anurag Narain, learned counsel for respondent no. 5. Issue notices to respondent nos. 3 & 4 returnable at an early date. By the present writ petition, petitioner has challenged order dated 12-09-2019 passed by respondent no. 2, whereby his representation is rejected. The petitioner has represented as his name was not considered while commission was considering the names of candidates for promotion from the post of Reader to the post of Professor. Petitioner claims that as per the seniority list, he was at serial no. 4, but, names of his juniors were considered by the commission and his name was left out. In the impugned order, the commission has given reason that the date of appointment of the petitioner is 26-08-2010 and the selections are being made for the year 2016-2017, hence, he has not completed six years of his service as required under rules, therefore, his name was not considered. Learned counsel for the petitioner has placed before this court the Rules of 1990, applicable in the case of the petitioner. Rule 5(Kha) of the said Rules, provides six years of regular satisfactory service for consideration for promotion, however, the said rule is silent as to on which date, the experience is to be completed. Learned counsel for the petitioner has placed before this court the Rules of 1990, applicable in the case of the petitioner. Rule 5(Kha) of the said Rules, provides six years of regular satisfactory service for consideration for promotion, however, the said rule is silent as to on which date, the experience is to be completed. In the absence of any specific date given, the same is claimed to be the date on which the promotions are being considered. Reliance is also placed by learned counsel for the petitioner on the Judgment of Hon'ble Supreme Court in the case of R.B. Desai and another v. S.K. Khanolker and others, reported in (1999) 7 Supreme Court Cases, 54 . Para 9 of the said Judgment provides that unless there is anything adverse in the rules, experience is to be considered on the date for considering the names for promotion. Learned Standing Counsel and learned counsels for respondent nos. 2 & 5 have vehemently argued that it is the selection year, which is to be considered, however, they could not show any case law before this court. Learned counsel for the respondent no. 5 further submits that seniority of the petitioner is also wrongly fixed above respondent no. 5 and Writ Petition No. 6605(S/S) of 2019 is already pending before this court, as he was appointed prior to the petitioner. Learned counsels for the parties agree that it would be appropriate that both the writ petitions may be heard and decided together. Respondents may file Counter Affidavit within three weeks. Rejoinder Affidavit, if any, may be filed within two weeks thereafter. List this case in the week commencing 16-12-2019 alongwith Writ Petition No. 6605(S/S) of 2019. Till the next date of listing, respondents are restrained from making any appointment on the post of Professor in Government Ayurvedic College, Uttar Pradesh in furtherance of selection under challenge.' 9. Since the dispute of seniority has been raised by Dr. Sharad Johri and Smt. Rekha Bajpai, who belong to the department of Kaya Chikitsa and the selection for the post of Professor in Kaya Chikitsa was challenged, therefore, that order dated 01.11.2019 should be read for the selection only which was under challenge in terms of order dated 01.11.2019. The entire selection on the post of Professor in all 12 departments may not be affected inasmuch as the petitioners of that writ petitions, namely, Dr. The entire selection on the post of Professor in all 12 departments may not be affected inasmuch as the petitioners of that writ petitions, namely, Dr. Sharad Johri and Smt. Rekha Bajpai may not claim their selection/ promotion in any other department except the Kaya Chikitsa Department. 10. The contention of learned counsel for the petitioners is that despite the specific recommendation of the D.P.C. for promotion on the post of Professor for the petitioner, the recommendation has not been executed, therefore, the petitioners filed the present writ petition making prayer that the opposite parties be directed to implement the recommendation of the D.P.C. dated 20.07.2019. Not only the above, the petitioners have also assailed the notification dated 20.11.2019, whereby the advertisement for making contract appointment on the posts in question has been issued. 11. Counter affidavit has been filed by the State-respondents and the petitioners have filed rejoinder affidavit. 12. Dr. Sharad Johri has been implemented in the array of opposite parties as opposite party No.3 and his counsel Sri Subhash Vidyarthi has filed application for dismissal of the writ petition being not maintainable. 13. The sole ground regarding maintainability of the writ petition, which has been taken by learned counsel for the opposite party No.3, is that since by means of this writ petition the petitioners want to get the interim order dated 01.11.2019 passed in Writ Petition No.30102 (S/S) of 2019; Dr. Sharad Johri (supra) modified, which is not permissible in view of the dictum of Hon'ble Supreme Court in re: Farhd K. Wadia v. Union of India and others reported in (2009) 2 SCC 442. Sri Vidyarthi has submitted that para-14 of the aforesaid judgment of Hon'ble Supreme Court clearly directs that if any person wants that any order of the Court be modified or clarified, any appropriate application can be filed in that writ petition only and for that relief no separate writ petition can be filed. Therefore, as per Sri Vidyarthi, since the petitioners are seeking modification/ clarification of order dated 01.11.2019 passed in re: Dr. Sharad Johri (supra), therefore, this writ petition is not maintainable. 14. The State Government in his counter affidavit has admitted that the names of the petitioners have been recommended by the D.P.C. but on account of interim order dated 01.11.2019 passed in Writ Petition No.30102 (S/S) of 2019 (supra), the recommendation of the D.P.C. has not been implemented. Sharad Johri (supra), therefore, this writ petition is not maintainable. 14. The State Government in his counter affidavit has admitted that the names of the petitioners have been recommended by the D.P.C. but on account of interim order dated 01.11.2019 passed in Writ Petition No.30102 (S/S) of 2019 (supra), the recommendation of the D.P.C. has not been implemented. However, the State Government has submitted that all the departments of Ayurvedic Education are separate and the Reader of one department cannot be selected/promoted on the post of Professor in any other department as such promotions shall be made in the same department. 15. In the rejoinder affidavit, the learned counsel for the petitioners has reiterated the contentions of the writ petition and submitted that on account of the promotion of the present petitioners, Dr. Sharad Johri or Smt. Rekha Bajpai shall not be affected in any manner whatsoever, as those persons belong to another department not the department of the petitioners. 16. Having heard learned counsel for the parties and having perused the material available on records, I am of the considered opinion that this Court vide interim order dated 01.11.2019 passed in re: Dr. Sharad Johri (supra) has restrained the respondents from making any appointment on the post of Professor in the Government Ayurvedic College in furtherance of selection under challenge, it means that the particular selection which is under challenge in writ petition of Dr. Sharad Johri (supra), no promotion on the post of Professor can be made in the Government Ayurvedic College. Further, even if the recommendation of the D.P.C. dated 20.07.2019 relating to the present petitioners is implemented, Dr. Sharad Johri and Smt. Rekha Bajpai shall not be affected in any manner whatsoever. If the petitions of those persons, namely, Dr. Sharad Johri and Smt. Rekha Bajpai are decided finally, those persons shall avail the benefit of order of this Court and their orders shall not affect the present petitioners in any manner whatsoever. As a matter of fact, there is no dispute amongst the petitioners of both the writ petitions. 17. Not only the above, by means of this writ petition, the petitioner have not prayed that the interim order dated 01.11.2019 be modified or clarified but they have only prayed that the recommendation of the D.P.C. dated 20.07.2019 and the letter dated 25.07.2019, which is contained as Annexure No.1 to the writ petition, be implemented. 17. Not only the above, by means of this writ petition, the petitioner have not prayed that the interim order dated 01.11.2019 be modified or clarified but they have only prayed that the recommendation of the D.P.C. dated 20.07.2019 and the letter dated 25.07.2019, which is contained as Annexure No.1 to the writ petition, be implemented. While explaining the relevant details of the writ petition, the petitioners have informed the Court that two writ petitions bearing W.P. No.6605 (S/S) of 2019; Smt. Rekha Bajpai v. State of U.P. & others and another writ petition bearing Writ Petition No.30102 (S/S) of 2019; Dr. Sharad Johri v. State of U.P. & others of Kaya Department are pending for consideration wherein the interim order has been granted. 18. Learned counsel for the petitioners has only apprehended to the effect that however the interim order dated 01.11.2019 may not affect the present petitioners legally but if the reasons for not implementing the recommendation of the D.P.C. is an interim order dated 01.11.2019, the same may not be tenable in the eyes of law in view of the facts and circumstances of the issue in question. Therefore, the ground so raised by learned counsel for the private-respondent i.e. opposite party No.3 regarding maintainability of the writ petition is not tenable in the eyes of law. The innocuous prayer in the writ petition appears to be genuine, therefore, that relief may be granted to the petitioners. However, it is clarified that this order may not cause any prejudice to Dr. Sharad Johri and Smt. Rekha Bajpai in any manner whatsoever. 19. Accordingly, the opposite parties are directed to implement the recommendation of the D.P.C. dated 20.07.2019 and the letter dated 25.07.2019, which is contained as Annexure No.1 to the writ petition, so far as it relates to the petitioners for promotion on the post of Professor. The compliance of the aforesaid order shall be made within a period of three weeks from the date of production of a certified copy of this order. 20. In view of the aforesaid terms, the writ petition is allowed. 21. No order as to costs.