DR. GULAB CHANDARA GUPTA Vs. STATE OF U.P. THROUGH CHIEF SECRETARY, MEDICAL HEALTH AND FAMILY WELFARE AND OTHERS

JUDGEMENT

(1.) We have heard Sri Gyanendra Kumar Singh, the learned counsel for the petitioner and Sri Ajit Singh, the learned standing counsel appearing for the State.

(2.) The petitioner has prayed for the quashing of the Government Order dated 2.2.2005 by which the petitioner was granted notional promotion to the post of Joint Director, but was denied the higher post of Additional Director and Director on the ground that these posts can only be filled up on the basis of merit under Rule 4 of the Uttar Pradesh Government Servants Criterion for Recruitment by Promotion Rules, 1994 (hereinafter referred to as the Rules of 1994). The petitioner has also prayed for a writ of mandamus commanding respondent no.1 to grant all consequential benefits including promotion and pension on the basis of final seniority list dated 5.6.2003 pursuant to the decision of the Supreme Court dated 4.12.2002. The petitioner has prayed that notional promotion to the post of Deputy Chief Medical Officer w.e.f. 1.5.1979 as well as notional promotion to the post Additional Director w.e.f. 1.5.1990 and notional promotion to the post of Director w.e.f. 22.5.1996 should be given, which is the date when juniors to the petitioner were promoted on the said post. The petitioner has also prayed that in addition to the notional promotion, arrears of salary till the date of retirement and re-fixation of pension, salary, gratuity, etc. should also be granted.

(3.) The facts leading to the filing of the present writ petition need not be elaborated as necessary details have been graphically stated in the judgment of the Supreme Court in Dr. Chandra Prakash and others Vs. State of Uttar Pradesh and another, 2002 (10) SCC 710 . However, in a nut shell, the petitioner held an MBBS degree and was appointed on a temporary basis against a substantive vacancy in the Provincial Medical Service (PMS) by Governor on 30.12.1968, which was in accordance with the provisions of the United Province Medical Service (Men's Branch) Rules, 1945. The petitioner was subsequently recommended and selected by the U.P. Public Service Commission and was confirmed on 21.1.1978. Subsequently, PMS was merged with the Provincial Health Service (PHS) and a new cadre was formed, namely, Provincial Medical and Health Services (PMHS). Based on this new cadre a large number of persons were appointed by the State Government on temporary basis. Selections were also made by the U.P. Public Service Commission. From the period 1968 to 1979 there were three groups of doctors, namely, the doctors who were given temporary appointment and who had been selected by the U.P. Public Service Commission; the doctors, who were given temporary appointment but were not selected by the Public Service Commission and the doctors who were selected by the Public Service Commission without being temporarily appointed.