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2023 DIGILAW 135 (ALL)

Rakesh Kumar Bajpai v. State of U. P.

2023-01-13

VIVEK CHAUDHARY

body2023
JUDGMENT : VIVEK CHAUDHARY, J. 1. Heard learned counsel for the petitioner and Sri V.K. Shahi, learned Additional Advocate General assisted by Sri Prafull Yadav, learned Standing Counsel and perused the record. 2. The petitioners have approached this Court challenging the impugned order dated 20.07.2022 passed by the respondent no. 1 (Annexure No. 1, to the writ petition) as well as the Government Order of the same date i.e. 20.07.2022 filed as Annexure No. 2 to the writ petition. 3. Facts of the case are that the petitioners who are working as Senior Homeopathic Medical Officers claimed that they belong to one and common cadre, from amongst them persons are also appointed as District Homeopathic Medical Officers and Deputy Directors (Homeopathic). Earlier by a Government Order dated 03.01.2017, it was provided that the senior most Homeopathic Medical Officers would be appointed as Deputy Directors (Homeopathic) and the next 75 senior most persons shall be appointed as District Homeopathic Medical Officers in the 75 districts. The remaining persons shall work as Senior Homeopathic Medical Officers. The same was done as the administrative duties of the Deputy Directors (Homeopathic) and the District Homeopathic Medical Officers were much superior and they were also entitled to write the ACARs of their subordinate officers including the Senior Homeopathic Medical Officers working under them. 4. Surprisingly, by the impugned Government Order dated 20.07.2022, the said policy was modified and it was provided that the said condition of appointing four senior most persons as Deputy Directors (Homeopathic) and next 75 persons as District Homeopathic Medical Officers and the same was withdrawn. The State Government retains itself the discretion to appoint any senior Medical Officer irrespective of his seniority to work as District Homeopathic Medical Officer and the said Government Order was withdrawn to the said extent. The State Government retains itself the discretion to appoint any senior Medical Officer irrespective of his seniority to work as District Homeopathic Medical Officer and the said Government Order was withdrawn to the said extent. The reasons for the same are given in Paragraph 5 of the Government Order, which reads as under: ^^;g mYys[kuh; gS fd gksE;ksiSfFkd fpfdRlkf/kdkfj;ksa dk eq[; dk;Z jksfx;ksa dk mfpr Ádkj ls mipkj fd;k tkuk gSA ofj"B ,oa vuqHkoh gksE;ksiSfFkd fpfdRlkf/kdkfj;ksa dh vko';drk ÁR;sd tuin ds jksfx;ksa dks gSA ;fn lHkh ofj"B gksE;ksiSfFkd fpfdRlkf/kdkfj;ksa dks ofj"Brk Øe esa ftyk gksE;ksiSfFkd fpfdRlkf/kdkjh ¼Á'kklfud in½ cuk fn;k tkrk gS rks mudh ;ksX;rk vkSj vuqHko dk ykHk vke turk@jksfx;ksa dks ÁkIr ugha gks ik;sxkA mDr ds n`f"Vxr vk;q"k vuqHkkx&2 ds mDr vkns'k la[;k&3141@71&vkq"k&2&2016&158@2016] fnukad 03-01-2017 dks voØfed djrs gq, O;ikd tufgr esa ;g fu.kZ; fy;k tkrk gS fd Áns'k ds leLr tuinksa esa rSukr gksE;ksiSfFkd fpfdRlkf/kdkfj;ksa esa ls ofj"Bre ofj"B gksE;ksiSfFkd fpfdRlkf/kdkjh dks ftyk gksE;ksiSfFkd fpfdRlkf/kdkjh ds :i esa rSukr fd;k tk;sxk vkSj ;g lqfuf'pr fd;k tk;sxk fd tuin dk dksbZ Hkh ofj"B fpfdRlkf/kdkjh fdlh dfu"B ftyk gksE;ksiSfFkd fpfdRlkf/kdkjh ds v/khu dk;Zjr u gksA** 5. The reasons given that the senior Homeopathic Medical Officers, who are experienced are required in every district. It also states that in a district, a person senior to the District Homeopathic Medical Officer shall not be appointed as Senior Homeopathic Medical Officer. The reasons and conditions provided in Paragraph 5 of the Government Order, defeats the very purpose which is provided in this regard. Once a junior person is appointed in a district as the District Homeopathic Medical Officer, no person senior to him would be appointed. Thus, only further junior persons would be appointed in the said district as Senior Homeopathic Medical Officer. The earlier policy of the State Government which provides that 75 senior most persons be appointed as District Homeopathic Medical Officers in 75 districts, gave sufficient flexibility to the Government to appoint senior persons from amongst Senior Homeopathic Medical Officers also in every district. The conditions provided in the impugned Government Order is self defeating and being arbitrary is hit by Article 14 of the Constitution of India. Therefore, the Government Order dated 20.07.2022, is hereby quashed. 6. The conditions provided in the impugned Government Order is self defeating and being arbitrary is hit by Article 14 of the Constitution of India. Therefore, the Government Order dated 20.07.2022, is hereby quashed. 6. Learned Standing Counsel states that the rules provide sufficient discretion to the State Government to appoint Senior Homeopathic Medical Officers, as they desire, as there is no condition placed in the rules except for appointing four senior most persons as Deputy Directors (Homeopathic). He further submits that the grade of the Deputy Directors (Homeopathic) and District Homeopathic Medical Officers and Senior Homeopathic Medical Officers, is the same. 7. I do not find any force in the submissions of learned Standing Counsel. To fill up the gap in the rules, the State Government itself has issued a Government Order dated 03.01.2017 and filled the said gap. The procedure provided in the Government Order 03.01.2017 in itself is sufficiently provided the procedure which was not arbitrary and was in consonance of Article 14 of the Constitution of India. 8. Since the Government Order dated 20.7.2022 is set aside, hence the impugned order dated 20.07.2022, whereby the persons have been appointed in furtherance of the Government Order dated 20.07.2022, also cannot stand and is hereby set aside. The State Government is directed to appoint the persons in accordance with the Uttar Pradesh Homeopathic Medical Service Rules, 1990, duly amended from time to time as well as the Government Order dated 03.01.2017. The said modification in the posting shall be made, positively within a period of four weeks from today. 9. The writ petition is allowed.