KISHWAR JAHAN Vs. STATE OF U P

JUDGEMENT

(1.) G. P. Mathur, J. This writ petition under Article 226 of the Constitution has been filed for quashing the orders dated 15- 5-1998 passed by Secretary, Medical and Health Services, U. P. Government, and the order dated 21-7- 1998 passed by the Chief Medical Officer, Allahabad. A further prayer has been made that a writ of mandamus be issued directing the respondents to take the petitioner back in service as a medical officer.

(2.) THE selection in Provincial Medical Service is made through U. P. Public Service Commission in accordance with the PMS Service Rules. Since regular appointments had not been made for a long time and there were many vacancies on the post of medical officers, the U. P. Government issued a G. O. dated 16-8-1985 which provided for appointment of medical officers on short-term basis through the Chief Medical Officers of the districts. THE appointment so made were to last till regularly selected candidates joined on the posts. Another GO was issued on 28-8-1986 whereby lady doctors holding BAMS/bums degree could be appointed as part-time lady medical officers. THE petitioner claims that she holds a degree of BUMS (Bachelor of Unani Medicine and Surgery ). In response to her application dated 1-1-1987, the petitioner claims that she was selected by a committee constituted at the district level by the Chief Medical Officer, Allahabad, and, thereafter, she was issued an appointment order on 7-2-1987 appointing her as a part-time lady medical officer. She was required to work for six days a week and was to be paid a honorarium of Rs. 1500 per month. Some additional allowance was paid for doing night duty. Paragraph 5 of the appointment order specifically mentions that she had not been appointed in any Government service and she would not be treated as a Government servant. Paragraph 6 provides that her appointment was for a period of one year only. THE appointment order was issued by the CMO, Allahabad and a copy of the same has been filed as Annexure-2 to the writ petition. THE petitioner claims that her appointment was extended from time to time and the last appointment order was issued on 2-4-1990 by which she was appointed lady medical officer till 31-3- 1991 and she was to be paid remuneration at the rate of Rs. 60 per day. THE appointment order further mentions that her services could be terminated at any time. A copy of this order has been filed as Annexure-6 to the writ petition. In response to the GO dated 10-10-1990 the CMO, Allahabad passed an order dated 17-11-1990 terminating her services. THE petitioner then filed C. M. Writ Petition No. 30572 of 1990 challenging her termination order, in which notice was issued on 21-11-1990 and the following interim order was passed: "until further orders or the expiry of 31st March, 1991, whichever is earlier, the operation of the order dated 17-11-1990 (Annexure-II to the writ petition) will remain stayed. "

(3.) IN the counter-affidavit filed on behalf of the State, it is averred that the petitioner holds a degree of BUMS (Bachelor of Unani Medicine and Surgery) while in the Government hospitals persons holding MBBS degree have to be appointed. The petitioner had been given a short-term appointment on daily wage basis as there were large number of vacancies and people in the rural area were suffering great hardship on account of non-availability of doctors. However, after appointment of Dr. Alpana Verma, services of the petitioners were terminated on 17-11-1990 as per the terms and conditions of her short- term appointment, which clearly provide that her appointment would come to an end in the event a regularly selected candidate joined on the post. It is further averred that the benefit of GO dated 15-5- 1998 has been given to only those doctors who had been appointed upto 17-7-1991 and had been working continuously on the date of issuance of the GO, i. e. on 15-5-1998. Since the services of the petitioner had come to an end after joining of Dr. Alpana Verma, she could not be given the benefit of the Government Order.