Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 1561 (ALL)

Shivendra Vashishtha v. State of U. P.

2023-07-04

IRSHAD ALI

body2023
JUDGMENT : IRSHAD ALI, J. 1. Heard Sri Vishal Verma, learned counsel for the petitioner and learned Additional C.S.C. for the respondent-State. 2. By means of present writ petition, the petitioner has prayed for issuance of a writ, order or direction in the nature of mandamus commanding the respondents to allow the petitioner to work on the post of Pharmacist in pursuance of appointment order dated 24.02.2009 with a direction to the respondents to issue joining letter to the petitioner with a further prayer to issue a writ, order or direction in the nature of mandamus commanding the respondents to consider and decide the representation dated 15.07.2010 and to allow the petitioner to work on the post in the light of judgments and orders dated 16.07.2010, 22.02.2010 & 23.03.2010. 3. Brief facts giving rise to the present writ petition are as under: S. No. Relevant Facts of the Case (a) An advertisement was issued on 29.08.2008 by the Director General of Medical Education and Training (for short “DGME”), Lucknow for the post of Pharmacist in Government Medical College, Kannauj. (b) On 21.01.2009, a notification was issued that all the applicants who possess 62% marks in the diploma of pharmacy shall appear on 28.01.2009 to 03.02.2009. (c) On 02.02.2009, a call letter was sent to the petitioner with other six persons by the DGME to appear in the interview for the post of Pharmacist and in pursuance thereof, the petitioner appeared in the interview. (d) On 18.02.2009, a letter was endorsed to DGME by the Principal of Medical College, Azamgarh asking to fill the different posts from the waiting list of Medical College, Kannauj. (e) On 24.02.2009, an appointment letter to the petitioner along with other six persons was issued by the Medical College, Kannauj to join on the post of Pharmacist in Medical College, Azamgarh. Thereafter, the petitioner was not allowed to join, however, four persons were allowed to join in pursuance to the said appointment letter. (f) On 22.05.2009, the appointment of the four persons, who had join the services, was cancelled. (g) On 25.06.2009, Hon'ble High Court has stayed the cancellation order dated 22.05.2009 and the four persons were allowed to rejoin on 04.11.2009. (h) On 15.07.2010, the petitioner made representation to the concerned authorities, which is lying pending consideration and no order has been passed till date. (g) On 25.06.2009, Hon'ble High Court has stayed the cancellation order dated 22.05.2009 and the four persons were allowed to rejoin on 04.11.2009. (h) On 15.07.2010, the petitioner made representation to the concerned authorities, which is lying pending consideration and no order has been passed till date. (i) Hence, the present writ petition has been filed before this Court. 4. Submission of learned counsel for the petitioner is that appointment of the petitioner was made after following due procedure and the petitioner has faced selection committee and appointment letter has been issued to him and on the ground of any lapse/technical objection on the part of the respondents, the petitioner should not be deprived. 5. He further submitted that there was no allegation against the petitioner for concealment or fraud, therefore, he should not be paralyzed by not allowing him to join the post. 6. He next submitted that name of the petitioner finds place at serial No. 4 in the appointment letter issued to the petitioner along with six other persons. He submitted that under the order of this Hon'ble Court, four persons have been permitted to re-join the said post except the petitioner and in this regard the petitioner has made representation also, which is lying pending and no action has been taken thereupon. Therefore, the respondents cannot be permitted to adopt pick and choose formula adopting discriminatory policy by depriving the petitioner. 7. On the other hand, learned Additional C.S.C. submitted that the advertisement dated 29.08.2008 was published with regard to posts including the post of Pharmacist for appointing the candidates in Medical College, Kannauj. He submitted that case of the petitioner is that he has been appointed by Dr. R.K. Gupta, the Principal of Medical College, Kannauj from the waiting list prepared for appointments in Medical College, Kannauj. He submitted that respondent No. 2 has never authorized to the Principal of Medical College, Kannauj to issue such appointment letters appointing the candidates for Medical College, Azamgarh and he was not the competent authority to do so. 8. He further submitted that similar situated persons to the petitioner, namely, Santosh Kumar Upadhyaya, Neeraj Gupta, Sandeep Kumar Singh and Sushri Seema Verma produced photocopy of the appointment letter and were permitted to join the post on the basis of instructions issued by higher authorities. 8. He further submitted that similar situated persons to the petitioner, namely, Santosh Kumar Upadhyaya, Neeraj Gupta, Sandeep Kumar Singh and Sushri Seema Verma produced photocopy of the appointment letter and were permitted to join the post on the basis of instructions issued by higher authorities. He submitted that the petitioner has neither submitted original copy of the appointment letter nor the same is available with him. He further submitted that the appointment letters were having a rider to join within 15 days, and in case of non-joining within 15 days, the same will be automatically cancelled, therefore, the petitioner cannot benefit of the same after such a long period. 9. He next submitted that the appointment granted to similarly situated persons was cancelled by the respondents, which was stayed by this Hon'ble Court in various writ petitions, however, the case. of the petitioner is not covered with those candidates, as neither the petitioner joined the post in question nor his appointment was cancelled at any point of time. He submitted that the petitioner has filed the writ petition after more than one year and two months, therefore, no cause of action remains and the writ petition is liable to be dismissed. 10. He lastly submitted that the Principal of Medical College, Kannauj is not the appointing authority to an employee at Medical College, Azamgarh. He submitted that no procedure has been followed to appoint the candidates in Medical College, Azamgarh, as neither there was advertisement issued nor selection by interview, appointment letters and joining were conducted by the appointing authority. 11. Learned counsel for the petitioner on the basis of rejoinder affidavit submitted that the DGME has the full jurisdiction to fill vacancy in any Government Medical College running in the State. An appointment letter to the petitioner along with six other persons was issued by Principal, Medical College Kannauj on 24.02.2009 to join the post of Pharmacist in Medical College, Azamgarh. He submitted that authencity of appoinment letter dated 24.2.2009 is itself proved from joining of other four persons, namely, Neeraj Kumar Gupta, Santosh Kumar Upadhyaya, Sanjeev Singh and Seema Verma and the respondents have denied the joining to the petitioner on the basis of technical objections. 12. I have considered the submissions advanced by learned counsel for the parties and perused the material on record. 13. 12. I have considered the submissions advanced by learned counsel for the parties and perused the material on record. 13. On perusal, it is evident that an advertisement was published and on the basis of appointment letter issued to the petitioner along with six other persons, four persons named above were given joining in Medical College, Azamgarh. Later on, their appointment has been cancelled vide order dated 22.05.2009. Subsequently, as a result of order of this Court in several writ petitions, the order dated 22.05.2009 was recalled by the respondents and the aforementioned four persons were permitted to re-join their respective post. However, the petitioner, whose name finds place at serial No. 4 in the aforesaid list, has not been permitted to join on the ground of technicalities. This fact itself has been admitted in the counter affidavit that four persons were initially permitted to join on the instructions of higher authorities. Therefore, such kind of discrimination cannot be permitted to go on. 14. If the aforementioned four persons were the part of same selection under same advertisement and were permitted to join the post under same appointment letter, there is no occasion to not permit the petitioner to join his respective post. 15. In view of reasons recorded above, the writ petition deserved to be allowed and is hereby allowed. 16. A writ in the nature of mandamus is issued commanding the respondent No. 2 to look into the matter and if case of the petitioner is akin to aforementioned persons, namely, Santosh Kumar Upadhyaya, Neeraj Gupta, Sandeep Kumar Singh and Sushri Seema Verma, he shall also be given joining within a period of four weeks from the date of production of a certified copy of this order. 17. No order as to costs.