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Allahabad High Court · body

2020 DIGILAW 745 (ALL)

Alok Kumar Mishra v. State of U. P.

2020-03-06

CHANDRA DHARI SINGH

body2020
ORDER : 1. In all the petitions, similar facts and law are involved and also the similar reliefs has been prayed for by the applicants/petitioners, therefore, they are being decided collectively by this common order. For the sake of convenience, facts of Writ Petition Service Bench No. 364 of 2011 (Dr. Alok Kumar Singh and Others vs. State of U.P. and Others) are being taken up for deciding the matter. 2. By way of these petitions, the petitioners have prayed for issuing a writ of mandamus directing opposite parties to make payment of salary to the petitioners at par with their regular counterparts during the period the petitioners served prior to 28.02.1992 as has been ordered in the case of U.P. Anshkalik Chikitsak Sangarsh Samiti vs. State of U.P. and Others along with arrears of salary as has been done in the case of Medical Officers (Allopathic) as well as Medical Officers (Homeopathic) and Lecturers in Sanskrit in various Ayurvedic Colleges and also to regularize/absorb the petitioner w.e.f. the date when each of the petitioner had completed three years services and, in any case, at par with the Medical Officers (Homeopathic). 3. The factual matrix of the case is that on 14th July, 1987 the State Government issued on order providing that the posts which were lying vacant in various Government Hospitals in the hill region of the erstwhile State of U.P. may be appointed in by appointing Medical Officers belonging to Allopathic, Ayurved and Unani system of medicine against the post of male/female medical officers. A large number of vacancies were available on which M.B.B.S. full time Doctors were required to be filled but as they were not available and since ad hoc/regular appointments on Allopath Doctors was likely to take some time, therefore, in public interest the Government issued the order to appoint part time daily wages MBBS doctors vide Government Order dated 16th August 1985. Since Allopathic (MBBS) Doctors were not available in adequate number the State Government issued Government order dated 28th August 1986 to appoint Ayurvedic and Unani Part-Time daily wage Doctors on the conditions that their services can be terminated without notice and that the same would stand automatically terminated as and when ad hoc regular Allopathic MBBS full time Doctors were posted on the aforesaid posts. 4. 4. Vide Government Order dated 28th August 1986, the Chief Medical Officers were authorized to appoint these part time daily wage BAMS/BUMS doctors after holding selection constituting a selection of committee consisting Superintendent/Superintendent of the District Male/Female Hospitals, Divisional Officer Ayurved or any other officer of that pathy as members of the said selection committee. 5. That the services of the aforesaid part time Medical Officers holding the degree of BAMS or BUMS were not for the whole day but they were required to do duties for a fixed time on a fixed remuneration. The State Government vide Government Order dated 14.07.1987, sent to the Director General Medical Health and Family Welfare, permitted the filling of vacancies in Allopathic Male Hospitals as well as Ayurvedic and Homeopathic Hospitals in hill areas of the State by appointing part time Medical officers. In accordance with the said policy decision, as aforesaid, part time Medical Officers belonging to various disciplines were engaged during the period 1987 to 1990. 6. An advertisement was issued on 09.05.1989 by the Director General, Medical Health and Family Welfare for appointment of (MBBS) ad hoc doctors in the halves dispensary. 7. The petitioners herein were appointed on the post of Medical Officers (Ayurvedic) on contract basis in pursuance of Government Orders dated 16.08.1985, 28.08.1986 and 14.07.1987. The petitioners were qualified in Ayurvedic discipline to hold the posts of Medical Officers under the State Government and they were also trained to provide medical services to the people. The petitioners were appointed as Medical Officers (Ayurvedic) in different primary health centers, Community Centers, hospitals of the State Government. 8. The said advertisement issued on 09.05.1989 was challenged by U.P. Anshkalik Samiti through writ petition No. 4886 of 1990 with the prayer that advertisement dated 09.05.1989 which had been appeared to make ad-hoc appointments on the posts of Medical Officers (Ayurvedic) from outside to be quashed and the State Government may be commanded not to replace the members of the U.P. Anshkalik Chikitsak Sangarsh Samiti and to regularize their services treating them to have been appointed on ad-hoc posts and to give them full salary and the allowances to the Members of the petitioners' association on the posts of Medical Officers (Ayurvedic) and also allow them to continue on their respective posts. 9. 9. The writ petition filed by ad-hoc doctors for the regularization of the services was opposed by the State on the ground that nature of appointment of those medical officers (Ayurvedic) was on part time basis and thus were not entitled either for payment of salary equivalent to those who have been working on full time basis or their regularization of services like ad-hoc appointees. Vide judgment and order dated 11.02.1992, the Writ Petition No. 4886 of 1990 (U.P. Anshkalik Chikitsak Sangarsh Samiti vs. State of U.P. and Others) was allowed by this Court after going through each and every aspects of the matter including the qualifications possessed by the Medical Officers (Ayurvedic), their working hours and the nature of duties. The impugned order dated 09.05.1989 was quashed and a mandamus was issued commanding the respondents not to replace the doctors of the petitioners and to consider their regularization within six months from the date of production of a copy of the order. The opposite parties were further directed to pay full salary to the petitioners which a medical officer is entitled in accordance with Rules forthwith. 10. On 28.02.1992, the State Government issued an order and appointed 591 Medical Officers on ad-hoc basis and allowed them the pay-scale and allowances attached to the post of Medical Offices. Out of these appointments, 55 medical officers were appointed in Ayurvedic discipline of medicine while 36 were in the Homeopathic. 11. On 28.03.1992, the State Government further issued a circular to all the Chief Medical Officers in the State of U.P. and sought a list of those part-time medical officers whose names could not figure in the order dated 28.02.1992. The State Government further summoned list of part-time medical officers (Ayurvedic) who have been appointed after 17.05.1990. The State of U.P. in Special Leave Petition (C) Nos. 8635 of 1994 and other connected matters made a statement before the Hon'ble Supreme Court that the state was willing to absorb all the ad-hoc Medical Officers (Homeopathic). In the aforesaid cases, Hon'ble Supreme Court accordingly ordered for absorption of 364 Medical Officers (Homeopathic) who were not selected from the Public Service Commission within eight weeks from 25.10.1994. 12. 8635 of 1994 and other connected matters made a statement before the Hon'ble Supreme Court that the state was willing to absorb all the ad-hoc Medical Officers (Homeopathic). In the aforesaid cases, Hon'ble Supreme Court accordingly ordered for absorption of 364 Medical Officers (Homeopathic) who were not selected from the Public Service Commission within eight weeks from 25.10.1994. 12. In pursuance of the said order, the State Government in relaxation of the provisions of U.P. Regularization of Ad-hoc appointment (on post within the purview of the Public Service Commission) Rules, 1979 absorbed the services of 364 of Medical Officers (Homeopathic) in their regular establishment. In the aforesaid order, the names of 31 Medical Officers (Homeopathic) who were appointed on ad-hoc basis by order dated 28.02.1992 along with the petitioners had also figured. 13. Learned counsel for the petitioners has submitted that in view of the aforesaid facts, it is clear that out of 591 Medical Officers appointed on ad-hoc basis vide order dated 28.02.1992, only 31 belonging to Homeopathic discipline had been picked-up for absorption in regular establishment in relaxation of U.P. Regularization of Ad-hoc appointment (on post within the purview of Public Service Commission) Rules, 1979, but the Medical Officers belonging to Ayurvedic discipline were left out for arbitrary and discriminatory treatment though there were no valid ground for such discrimination. 14. Further submission of the learned counsel for the petitioners is that petitioners were similarly placed with their counterparts in Homeopathic discipline as both were appointed initially on part-time basis, given full salary when appointed vide order dated 28.02.1992, posts in both the disciplines were available and to be specific. 703 posts of Medical Officers (Ayurvedic) were available and both were governed by U.P. Regularization of ad-hoc appointment (on post within purview of Public Service Commission) Rules, 1979. 15. Learned counsel for the petitioners has submitted that the petitioners have been given regularization w.e.f. 16.03.2005 i.e. after about 13 years from the issuance of the order dated 28.02.1992 whereas those belonging to Homeopathic discipline, were absorbed/regularized in relaxation of Service Rules of 1979 within four years of their appointment on ad-hoc basis. 16. Learned counsel for the petitioners has submitted that the petitioners were appointed on alleged part-time basis against those posts and given their wages on daily basis in the form of honorarium, which is contrary to the judgment and order of this Hon'ble Court. 16. Learned counsel for the petitioners has submitted that the petitioners were appointed on alleged part-time basis against those posts and given their wages on daily basis in the form of honorarium, which is contrary to the judgment and order of this Hon'ble Court. This Court has held that those working on the post of Medical Officers (Ayurvedic) and working at various Primary Health Centres, Community Health Centres and Hospitals were working full time and they were qualified to hold such posts and therefore, there was no ground to discriminate their case with those holding the degree of M.B.B.S. and working as Medical Officers (Allopathic). Inspite of the Judgment and order of Hon'ble the Apex Court dated 19.02.1996, the State Government did nothing in respect of regularization of the Ayurvedic Medical Officers, therefore, an application was moved therein that the State Government had not done anything in respect of regularization of Medical Officers (Ayurvedic) who have been working on ad-hoc basis for a long time. On the application, the Hon'ble Apex Court by means of an order dated 06.12.1999 further provided and directed the State Government to frame scheme for regularization of Medical Officers (Ayurvedic) within two months and take further action according to that scheme within two months thereafter. 17. Learned counsel for the petitioners has submitted that most of the petitioners have been working on ad-hoc basis on the post of Medical Officers (Ayurvedic) but were not being paid their salary in the prescribed scale of pay on the ground that they have been working on part time basis though this contention had already been repelled by this Hon'ble Court vide judgment and order dated 11.02.1992. 18. Learned counsel for the petitioners has submitted that it is settled law that an appointment beyond the rules is an ad-hoc appointment and since this Hon'ble Court had already held that the Medical Officers (Ayurvedic) have been working for full time. Hence, the Medical Officers like the petitioners who were termed as part time Medical Officers, have in fact been working on ad-hoc basis. 19. Hence, the Medical Officers like the petitioners who were termed as part time Medical Officers, have in fact been working on ad-hoc basis. 19. For strengthening the arguments, learned counsel has relied on the judgment of Hon'ble the Apex Court in the case of Rudra Kumar Sain and Others vs. Union of India and Others, 2008 (8) SCC 25, wherein the following has been held: “If an appointment is made to meet the contingency arisen on account of delay in completing the process of regular appointment to the posts due to any reason and it is not possible to leave the posts vacant till then and to meet this contingency, an appointment is made then it can appropriately be called as stop gap arrangement and appointment on the posts as ad-hoc appointment. It is not possible to lay down any straight jacket formula nor given an exhaustive list of circumstances and situation in which such an appointment (ad-hoc fortuitous or stop gap) can be made.” 20. Learned counsel for the petitioners has submitted that vide order dated 16.03.2005 only 333 Medical Officers were regularized but most of them were then left out, though, in the order dated 29.11.2004 in Contempt Petition No. 271 and 272 of 2000, the Hon'ble Supreme Court has recorded a statement made on behalf of the State of U.P. that the State has regularized more than 1000 Ayurvedic and Unani doctors as per the direction of the Court. The State Government regularized the services of most of the petitioners with retrospective effect i.e. 16.03.2005 that is the date when services of 333 Medical Officers (Ayurvedic) were regularized. 21. Learned counsel for the petitioners has submitted that the petitioners are legally entitled for regularization of their services after completion of three years of their initial appointment on ad-hoc basis and the salary on the posts at par with their regular counterparts w.e.f. the date of ad-hoc appointments. The opposite parties have not acted fairly and in accordance with law in utter disregard of the provisions of Articles 14 and 16 of the Constitution of India while those in Homeopathic, absorption had been offered within less than four years from the date of their ad-hoc appointments. 22. The opposite parties have not acted fairly and in accordance with law in utter disregard of the provisions of Articles 14 and 16 of the Constitution of India while those in Homeopathic, absorption had been offered within less than four years from the date of their ad-hoc appointments. 22. Per contra learned counsel appearing for the State-respondents has submitted that the petitioners were appointed on the post of Medical Officers (Ayurveda) under the provisions of Government Order dated 01.10.1991 on ad-hoc basis vide order dated 28.02.1992. It is further submitted that ad-hoc appointment of 591 Medical Officers were with regard to the purpose of adjustment. The petitioners' appointment on the post of Medical Officers (ad-hoc) falls within the criteria of Public Service Commission for regularizing ad-hoc appointments made on the post of Medical Officers. It is submitted that the regularization Rules 1979 (as amended in the year 2001) are in respect of regularization of ad-hoc appointees of Medical Officers under the provisions of the above said Rules, the services of petitioners were regularized w.e.f. 16-03-2005 which is just and in accordance to law. 23. Learned Standing Counsel has submitted that the judgment and order dated 11-02-1992 passed in W.P. No. 4886 (S/B) of 1990 (Anshkalik Chikitsa Sangharsh Samiti and Others vs. State of U.P. and Others) are in respect of the part time Medical Officers who were working on vacant posts in Allopathic Hospital and also against the requisition sent by the Medical and Health Department to the Public Service Commission in respect of the part time Medical Officers relating to hill areas. In compliance of the Hon'ble Court's order dated 11-02-1992 (supra), the State Government vide its order dated 28-02-1992 given ad-hoc appointment to 591 part time Medical Officers which includes Allopathic/ Ayurvedic/Unani and Homeopathic part time Medical Officer. 24. Learned counsel for the State has submitted that the petitioners have been rightly regularized w.e.f. 16.03.2005 under the policy decision of the State Government as incorporated by way of 3rd Amendment in the Regularization Rules brought into force on 20.12.2001 with a cut off date of 30.06.1998. It is submitted that the regularization can be claimed as a matter of right only if it is in accordance with rules or if an incumbent has been found of his legitimate right arising out of any rule and not otherwise. It is submitted that the regularization can be claimed as a matter of right only if it is in accordance with rules or if an incumbent has been found of his legitimate right arising out of any rule and not otherwise. In the case at hand, the petitioners' case for regularization in the light of the orders passed by Hon'ble the Apex Court on 16.12.1999 could at best be taken care of by making provision for regularization in applicable Service Rules, which has been duly done by incorporating 3rd Amendment and the cut off date provided wherein being neither under challenge nor can be the same be faulted with, the petitioners have no accrued right in their favour and the writ petition being devoid of merits, deserves to be dismissed. 25. Affidavits have been exchanged between the parties and I have heard learned counsel for the parties and gone through the record. 26. 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. 27. 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. 28. A petition Writ Appeal No. 30339 of 2010, Dr. 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. 28. A petition Writ Appeal 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.” 29. 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. 30. 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. 31. 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. 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. 32. 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. 33. 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. 34. In view of the finding recorded above, all the writ petitions are disposed of with direction to respondents to reconsider the case of the petitioners for regularization and payment of salary 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 observations made above.