Hon. Manoj Misra, J.
1. We have heard Dr. Kamal Dhawan appearing in person. Shri R.B. Pradhan, Addl. Chief Standing Counsel appears for the State respondents.
2. The petitioner is presently posted as Level-3 Medical Officer in the Government Women's Hospital, Fatehpur. By this writ petition she has prayed for directions to promote her to Level-4, on the post of Joint Director, or an equivalent post with consequential and financial benefits, in Specialist Sub Cadre (Female) (unreserved category) of the Provincial Medical and Health Services, State of U.P. She has also claimed promotional benefits equal to the post of Joint Director in Level-4 from the date the doctors immediately junior to her in the seniority list were promoted to Level-4.
3. The petitioner was appointed in the Provincial Medical and Health Services as Medical Officer on 5.11.1979. In Dr. Chandra Prakash & Ors. v. State of U.P. & Ors. (Writ Petition No.43 of 1998), decided on 4.12.2002 the Supreme Court directed the State Government to fix the seniority of all the doctors in PMHS cadre from the date of the order of their initial appointment counting their adhoc services within six weeks. In the seniority list prepared by the State Government in pursuance to the directions issued by Supreme Court in Dr. Chandra Prakash case, the petitioner was placed at Seniority No.4261.
4. The petitioner's services were governed by the U.P. Medical and Health Services Rules, 1994. A new set of service rules namely U.P. Medical and Health Services Rules, 2004, were notified on 11th August, 2004 creating four sub cadres; namely (i) Uttar Pradesh Medical and Health Service General Sub Cadre (Male); (ii) Uttar Pradesh Medical and Health Service General Sub Cadre (Female); (iii) U.P. Medical and Health service Specialist Sub Cadre (Male) and (iv) Uttar Pradesh Medical and Health Service Specialist Sub Cadre (Female). In the sub-cadre of Specialist (Female) the promotions were provided from the post of Specialist in Level-1 in the pay scale of Rs.8000-13500/- to Senior Specialist in Level-2 in the pay scale of Rs.10,000-15,200/-; thereafter to the post of Superintendent/ Consultant, and equivalent in Level-3 in the pay scale of Rs.12,000-16,500/-; and then to Joint Director and equivalent in Level-4 in the pay scale of Rs.14,300-18,300/-. The Rules of 2004, also provided promotions to the post of Additional Director and equivalent in Level-5 in the pay scale of Rs.16,400-20,500/- and thereafter on the post of Director. The department is headed by the Director General.
5. In Rule 5 of the Rules of 1994 the promotions were provided on completing 4 years, 10 years and 16 years of service. Before the implementation of the Rules of 2004, options were asked from all the Medical Officers under Rule 5 (2) for allocation of cadres with the condition that the option of the cadre will not be permitted to be changed, and that the sub cadre of Specialist, can be opted only by those Medical Officers, who have Post Graduate degrees in Medical Science.
6. It is submitted that the petitioner had opted for the sub-cadre on Specialist as she is a Post Graduate in Medical Science. By Government Order dated 15.4.2005 all the service benefits were to be provided in accordance with the seniority in the respective sub cadres, with reference to the seniority as on 5.6.2003. By a Government Order dated 20.5.2005 the State Government notified that in order to give consequential benefits on the basis of seniority in pursuance to the order of the Supreme Court dated 4.12.202, in Dr. Chandra Prakash's case, notional promotions were approved by the Governor in respect of 2047 posts in general category in List 1 and 2, and 518 serving Medical Officers in the reserved category (SC), on the basis of next below rule in Column 5 and 6. This arrangement was not to be applicable to the posts of Joint Director or above namely on the post of Director and Director General as these posts are to be filled on the basis of selection in which merit is the only criteria.
7. It is submitted that the respondents published the promotion list dated 15.6.2005 by which promotions were given to the level of Joint Director in Level-4 upto Seniority No.4516 in Specialist Sub Cadre (Female) (unreserved category). Inspite of the petitioner's seniority position at 4261, which were much higher to the last promoted person in the promotion list dated 15.6.2005, the respondents did not place the name of the petitioner in the promotion list, for promotion to the post of Joint Director in Level-4. The petitioner made representations on 20.6.2005, 14.9.2005 and 26.6.2006, without any result.
8. Once again a promotion list was published on 15.2.2007 by which the respondents gave promotions in Specialist Sub Cadre (Female) (unreserved category), upto Seniority No.6274 to the level of Joint Director in Level-4, and once again the petitioner inspite of her placement at Seniority No.4261, was left out and was not placed in the list. The petitioner again made representations on 19.6.2007, 10.12.2007 and 22.2.2007 without any result.
9. A promotion list was again published on 31.3.2008 in which promotions were given in Specialist Sub Cadre (Female) (unreserved category) upto Seniority No.7640 in the level of Joint Director in Level-4 and for the third time inspite of petitioner's seniority at Seniority No.4261, which is much higher than the last promoted person at Seniority No.7640 the petitioner was left out. The petitioner again represented on 28.5.2008 and 5.11.2008 and again no reply was given to her representation, giving rise to this writ petition.
10. The petitioner has filed four supplementary affidavits. In the first supplementary affidavit dated 13.12.2009 it is stated by her that she has received an information from Shri Om Prakash, Up Sachiv, Chikitsa Anubhag-2, Lucknow on 14.6.2009 that Medical Officers upto Seniority No.4752 were promoted notionally on the basis of their placement in the senior grade and Joint Director's grade on the basis of seniority in accordance with the Service Rules of 1994. The petitioner has been discriminated with the similarly situated doctors. Dr. Anshu Mishra was in Level-2; Dr. Vimla Sharma and Dr. Pushpa Singh were in Level-1. They were given notional promotion to the post of Joint Director in Level-4 from the date, when the juniors to them were promoted that is w.e.f. 15.6.2005 by order of the Secretary on behalf of the Governor on 31st March, 2008. There was no level wise system prior to the Rules of 2004, which were notified on 15.4.2005, and so the plea that the petitioner could not be promoted from Level-2 to Level-4 in June, 2005 is absurd. The petitioner has given the classification of her entries in her annual confidential record, and has annexed the entries given to her from 1993 to 2005 as follows:-
Year Grade Marks 2004-05 Utkrist (Outstanding) 3 2003-04 Uttam (Good) 1 2002-03 Achchha (Fair) 1 2001-02 Achchha (Fair) 1 2000-01 Ati-Uttam (Very Good) 2 1999-2000 Uttam (Good) 1 1998-99 Uttam (Good) 1 1997-98 Achchha (Fair) 1 1996-97 Uttam (Good) 1 1995-96 Achchha (Fair) 1 1994-95 Uttam (Good) 1 1993-94 Ati-Uttam (Very Good) 2
11. In para 8 the petitioner has stated that she has been awarded several certificates and ''Prashasti Patra' in 1996 for Family Planning Work and thus not only on the basis of seniority but also on the basis of merit, she was eligible for promotion, and entitled to be promoted notionally on the post of Joint Director in Level-4 on 15.6.2005, when 35 Medical Officers upto seniority position no.4516 in Specialist Sub Cadre (Female) (unreserved) were given promotion, whereas her seniority number is 4261.
12. In the second supplementary affidavit filed on 18.1.2010 it is stated by the petitioner that she was given the pay scale of Rs.12,000-375-16,500/- payable from 24.5.1996, which is applicable to Level-3 and as such there was no justification not to give to deny her promotion directly from Level-2 to Level-4, whereas Dr. Vineeta Singh (Seniority No.4269); Dr. Sushma Yogesh Tiwari (Seniority No.4274); Dr. Asha Pandey (Seniority No.4379); Dr. Vandana Srivastava (Seniority No.4372); Dr. Beena Awasthi (Seniority No.4379); Dr. Poonam Sharma (Seniority No.4413); Dr. Ranjana Agarwal (Seniority No.4415); Dr. Subodh Vadya (Seniority No.4416); Dr. Shashi Rastogi (Seniority No.4417); Dr. Sandhya Pradhan (Seniority No.4436) and Dr. Veena Rani Jain (Seniority No.4516) were promoted to Level-4 in June, 2005. All these doctors were holding the post of Medical Officer/ Gynecologist prior to the promotion in Level-4. It is further stated in para 3 of the second supplementary affidavit that by Office Memo dated 6.9.2005 the female doctors were posted on transfer on the post of Level-4 (Chief Medical Superintendent) from their existing post of Medical officer/ Gynecologist, who were promoted on 15.6.2006. The list shows the name of Dr. Reeta Chaterjee (Seniority No.45); Dr. Amita Joshi (Seniority No.13); Dr. Usha Singh (Seniority No.8); Dr. Shaili Mehrotra (Seniority No.18) and Dr. Meera Devi Srivastava (Seniority No.34). These doctors were directly promoted from Level-2, to Level-4 to the post of Chief Medical Superintendent.
13. In the third supplementary affidavit the petitioner has referred to the judgment of the Division Bench of this Court in Writ Petition No.2877 of 2004 (Dr. Rajendra Prasad & Ors. v. State of U.P. & Anr.) decided on 10.11.2005 in which the retired doctors of PMHS, U.P. had claimed consequential benefits including notional promotion on the basis of new seniority list (last list of June, 2003). They were granted notional promotion with retrial pensionary benefits. Similar relief was given to Dr. J.P. Gupta in Writ Petition No.4 (S/B) of 2004 decided on 25.4.2005. In pursuance to the judgment a list was prepared by the State Government to grant notional promotion to these doctors as against their juniors. The list in Part A is from Dr. Padma Srivastava at Seniority No.1 to Dr. Indra Chopra at Seniority No.4624 (for the retired doctors). A notional promotion list was released for the benefit of 133 retired doctors. Three doctors were promoted in unreserved category namely, Dr. Asha Shukla (Seniority No.4267); Dr. Saroj Chauhan (Seniority No.4272) and Dr. Indra Chopra (Seniority No.4624).
14. It is submitted in the third supplementary affidavit that similar promotion list for in service doctors was also prepared from Seniority No.524 to Seniority No.4728 in which Dr. Rekha Gupta (Seniority No.4728) and Dr. Nirupama Srivastava (Seniority No.4753) were promoted to the post of Joint Director w.e.f. 20.4.2001. Another list of promotion was released on 20.5.2005 promoting Specialist Female Doctors from Seniority No.2043 to 3042 and ordinary female doctors from Seniority No.1776 to 2926, the petitioner at Seniority No.4261 had no idea that Dr. Nirupama Srivastava (Seniority No.4753) has been promoted to the post of Joint Director notionally from 25.2.1999 as against Dr. Shashi Sanghi. It is stated that the petitioner has been forced to work under her juniors, whereas she is more meritorious. Almost the entire batch of juniors have been promoted and also received the benefits of notional promotion but the petitioner being a gold medalist in Gynae. & Obstet. and having participated in all training programmes conducted by the Government in collaboration with WHO, SIFPSA and NACO and having worked for 18 years in 300 bedded District Hospitals has been put to great harassment.
15. In the fourth supplementary affidavit filed by the petitioner on 3.1.2012, she has filed entire broad sheets/ proposal of promotion to Senior Grade and J.D. Grade along with a chart showing anomalies in promotion to J.D. Grade (Level-4) on 15th June, 2005, received by her under The Right to Information Act, 2005, and from which she has explained that she was entitled to promotion from the date next junior to her was promoted on the basis of the service records.
16. In the counter affidavit of Shri Raj Kishore Yadav, Special Secretary, Medical and Health Department, it is stated that vide letter dated 17.11.2006 issued from the office of the Director General, Medical and Health, U.P. Lucknow a proposal was made to the State Government for petitioner's promotion form the post of Consultant to the post of J.D. in the pay scale of Rs.14,300-18300/- (Specialist Sub Cadre) from Level-3 to Level-4. The promotion was duly considered but she was not found eligible for promotion. In the Service Rules of 1994 in Rule 4 it was provided that those, who are getting the pay scale of Rs.18,300/- and more, their promotion will be considered on the basis of merit, and not on the basis of seniority. She was not found eligible for promotion. In paragraphs 6 to 8 of the counter affidavit it is stated that by Office Memorandum dated 20.5.2005 the approval was given for notional promotion on the basis of seniority, but since the promotion of the petitioner is to be considered on the basis of the procedure laid down in the Rules of 1994, the petitioner was not entitled to get any benefit. In the year 2005 the petitioner was working as Senior Gynecologist in Level-2, and therefore, she could not be considered in promotion to the post of Joint Director in Level-4. She was given promotion on the post of Consultant in Level-3. Her representations were considered and she was promoted in Level-3 vide Government Order dated 15th June, 2005 at Seniority No.3 in the Specialist Sub Cadre (Female) along with 198 doctors in unreserved category and 29 more in reserved category. She was not found eligible for promotion to Level-4 as the criteria for promotion for Level-4 Officer in the pay scale of Rs.18,300/- was merit and not seniority. By the Government Order dated 15.2.2007 the Medical Officers were promoted on the basis of merit, and not on the basis of seniority.
17. In reply to the supplementary affidavits filed by the petitioner a counter affidavit of Dr. K.P. Misra, Joint Director (Mahila) Swasthya Bhawan, Lucknow has been filed on 24.8.2011 and in which it is stated in paragraphs 5, 6, 7, 8, 9, 10, 11, 13 and 14 as follows:-
"5. that in reply to the contents of paragraphs 4 and 5 of the supplementary affidavit, it is submitted that in compliance of the order passed by this Hon'ble Court dated 4.12.2002 passed in Civil Misc. Writ Petition No.43 of 1998, notional promotion was to be granted to the retired/ working Male and Female Medical officers with retrospective effect and at that time there was separate cadre of Male and Female Medical Officers, in pursuance of which the State Government vide its order dated 21.5.2005 had granted notional promotion to working Female General category Medical Officer and similarly, vide Government Order dated 21.5.2005 retired Female Medical Officer were also granted notional promotion to Joint Director Grade. It is relevant to mention here that Dr. Asha Shukla, seniority No.6267, Dr. Saroj Chauhan, seniority no.4272 and Dr. Indra Chopra, seniority No.4624, are retired Female Medical Officer and as such their notional promotion is not similar to the promotion of the petitioner. It is relevant to mention here that the petitioner at the relevant period of time, the petitioner was working as senior Gynecologist (level-2) while notional promotion was required to be made from level-3 to level-4 post.
6. That in reply to the contents of paragraph 6 of the supplementary affidavit, it is submitted that the Annexure-6 of the writ petition is a letter dated 21.4.2005 which has been sent by the Director General, Medical and Health to the Government for providing notional promotion but later on the Director General, Medical and Health vide letter dated 18.5.2005 has sent a proposal for providing notional promotion to retired/ voluntarily retired/ working Medical Officers of P.M.H.S. Female cadre in general category as well as S.C. category in which the proposal of said notional promotion in general Female Medical Officers has been sent upto the seniority no.3763, Dr. Sarojni Joshi and accordingly, notional promotion in general Female Medical Officers has been given upto seniority of 3763.
7. That the contents of paragraph 7 of the writ petition are not admitted and in reply it is submitted that as stated above, vide Government Order dated 20.5.2005, notional promotion was granted to the Medical Officers on the post of Joint Director (Specialist) (Mahila) cadre upto the seniority from 2043 to 3402 and in Joint Director (general) (Mahila) cadre, the notional promotion was granted upto to the seniority from 1776 to 2926.
8. That in reply to the contents of paragraph 8 of the supplementary affidavit, it is submitted that the seniority of the petitioner is 4261. So far as Annexure-6 to the writ petition, is concerned, in this respect, it is submitted that a letter dated 21.4.2005 which has been sent by the Director General, Medical and Health to the Government for providing notional promotion but later on the Director General, Medical and Health vide letter dated 18.5.2005 has sent a proposal for providing notional promotion to retired/ voluntarily retired/ working Medical Officers of P.M.H.S. Female cadre in general category as well as S.C. category in which the proposal of said notional promotion in general Female Medical Officers has been sent upto the seniority No.3763, Dr. Sarojni Joshi and accordingly, notional promotion in general Female Medial Officers has been given upto seniority of 3763. It is further relevant to mention here that the notional promotion has been granted to general category female Medical Officers upto the seniority of 3763 while at that time, the petitioner was working in level-2 post hence no question arises for providing any notional promotion to the petitioner (seniority No.4261).
9. That in reply to the contents of paragraph 9 of the supplementary affidavit, it is submitted that as stated above, the petitioner in the year 2005 was working as senior Gynecologist in level-2 post and vide order dated 15.6.2005, she has been promoted from level-2 to level-3 post and vide government order dated 15.6.2005, notional promotion was given in Joint Director (Specialist Sub-Cadre) to certain eligible persons hence it is wrong to say that her case of promotion was not considered.
10. That the contents of paragraph 10 of the supplementary affidavit are not admitted and in reply it is submitted that the criteria of promotion in Joint Director Grade is merit of the candidate and not seniority of the candidate. The case of the petitioner was considered by the departmental promotion committee in its meeting dated 15.2.2007, 31.3.2008, 29.9.2009 and 5.1.2010 but since the petitioner was not found suitable for said promotion and as such she was not promoted in level-4 post.
11. That the contents of paragraph 11 of the supplementary affidavit are not admitted and in reply it is submitted that in compliance of the order passed by this Hon'ble Court dated 4.12.2002 passed in Civil Misc. Writ Petition No.43 of 1998, notional promotion was to be granted to the retired/ working Male and Female Medical Officers with retrospective effect and at that time there was separate cadre of Male and Female Medical Officers, in pursuance of which the State Government vide its order dated 21.5.2005 had granted notional promotion to working Female General category Medical Officer and similarly, vide Government Order dated 21.5.2005 retired Female Medical Officer were also granted notional promotion to Joint Director Grade. It is relevant to mention here that Dr. Asha Shukla, seniority no.6267, Dr. Saroj Chauhan, seniority no.4272 and Dr. Indra Chopra, seniority No.4624, are retired Female Medical Officer and as such their notional promotion is not similar to the promotion of the petitioner. It is relevant to mention here that the petitioner at the relevant period of time, the petitioner was working as Senior Gynecologist (level-2) while notional promotion was required to be made from level-3 to level-4 post.
13. That in reply to the contents of paragraph 14 of the supplementary affidavit, it is submitted that in the Government Order dated 28.6.2005, it has been clarified that promotion given to the Medical Officers in Joint Director Grade prior to 15.4.2005 will be given revised pay scale of Rs.14300-18300/- and thereafter, the revised pay scale of Joint Director grade will be given from the date of actual promotion in Joint Director Grade.
14. That the contents of paragraph 15 of the supplementary affidavit are not admitted and in reply it is stated that the behavior of the petitioner with the patients was not satisfactory for which she has been awarded "Kharab" entry in the year 2007-08. Apart from this, a disciplinary proceedings was also instituted against the petitioner under U.P. Govt. Servant (Discipline and Appeal) Rules, 1999 for dereliction in official duty."
18. The seniority position of the petitioner in the seniority list dated 5.6.2003 at Seniority No.4261 is admitted. It is also admitted that the petitioner had opted for Sub Cadre of Specialist as she is Post Graduate in Medical Science. The petitioner is aggrieved by promotion to the Medical Officers in her category, who are junior to her directly from Level-2 to Level-4, and of others from Level-3 to Level-4. She was left out in the promotion list in the Government Order dated 15.6.2005 and thereafter on 15.2.2007 and 31.3.2008 in which juniors to her were given promotions. The respondents have stated in the counter affidavit that her name could not be considered for promotion directly from Level-2 to Level-4 in the year 2005. She was considered for promotion and was promoted in Level-3 by order dated 15.6.2005 and since then she is working in Level-3. A proposal was made to consider her case for promotion to Level-4 by letter of the Director General, Medical and Health, U.P. Lucknow on 17.11.2006. Her case for promotion was duly considered but she was not found eligible for promotion. In Rule 4 of the Service Rules of 1994, which were applicable for promotion, it was provided that those, who were getting pay scale of Rs.18,300 and more, their promotions will be considered on the basis of merit and not on the basis of seniority. The petitioner was not found eligible for promotion. It is stated in the counter affidavit that by Government Order dated 15.2.2007 that certain Medical officers were promoted on the basis of eligibility and merit. They were not promoted on the basis of seniority and once again the petitioner could not be considered for promotion. It has been denied that the cases cited by the petitioner for notional promotion from Level-2 to Level-4 of the doctors, who are juniors to the petitioner in the seniority list, are similar to that of the petitioner. The petitioner was also considered for promotion but on account of her entries in the annual confidential report, she was not found eligible for promotion. The cases cited by the petitioner, which were relied on by the High Court by its judgment dated 4.12.2002, are not similar to that of the petitioner, as for them at the relevant time there was separate cadre of male and female Medical Officers. Those persons were given notional promotions of working in the Female General Category in Government Order dated 15.6.2005. By the same order retired female Medical officers were also granted notional promotion to Joint Director Grade. The petitioner at the relevant time was working as Senior Gynecologist in Level-2 while notional promotion was to be made from Level-3 to Level-4.
19. In Dr. Chandra Prakash & Ors. v. State of U.P. & Anr. (Supra) decided on 4.12.2002, the Supreme Court had allowed the writ petitions filed by the petitioners, who were issued temporary appointment in the new PMS by the Governor on 24th September, 1965, and 30th November, 1965. The Supreme Court traced the entire history of the Provincial Medical Service and Provincial Subordinate Medical Service and the merger of PMS-I and PMS-II and after referring to the judgments in State of U.P. v. M.J. Siddiqui, (1980) 3 SCC 180; State of U.P. v. V.R.K. Tandon & Ors., Civil Appeal No.4438-42 of 1995 held that all the doctors, who possess the requisite qualification, and were appointed with the approval and consultation of the appropriate authority, and had continued on the substantive posts for a fairly long time, their appointments cannot be held to be stop gap or fortuitous or purely adhoc. The Supreme Court consequently gave following directions:-
"We accordingly allow the writ petitions and declare that 1) the writ petitioners are not within the purview of the 1979 Rules; 2) the State Government will fix the seniority of all doctors in the PMHS cadre from the date of the orders of their initial appointment within a period of six weeks from the date of this order and give all consequential benefits including promotions and positions on the basis of such seniority list; 3) Those doctors who were selected in 1972 and 1977-78-79 by the PSC and who were not issued any orders of appointment and joined the service on the basis of Tandon's case, will be treated as having been appointed on the date that they actually joined the service and their seniority will be counted from that date. There will be no order as to costs."
20. The U.P. Government Servant (Criteria for Appointment by Promotion) (Second Amendment) Rules, 1998 notified on 10th June, 1998, provides for merit as the criteria for promotion to the post, which has the maximum of pay of Rs.18,300/-, in the pay scale. For the post of Joint Director Grade/Level-4 the old pay scale was Rs.14,300-18,300/-. Since the highest of the pay scale was Rs.18,300/-, under the Second Amendment to the Rules of 1998, merit was the criteria for promotion. Dr. Kamal Dhawan, the petitioner was considered for promotion four times i.e., on 15.2.2007, 31.3.2008, 29.9.2009 and on 5.1.2010, and was not found suitable as her service records did not entitle her for promotion on merits.
21. We have seen the entries in the service records of the petitioner given by her in her supplementary affidavits as well as in the chart produced by her. She was given Very Good in 1993-94; Good in 1994-95; Fair in 1995-96; Good in 1996-97; Fair in 1997-98; Good in 1998-99; Good in 1999-2000; Fair in 2001-02; Fair in 2002-03 and Good in 2003-04. In 2004-05 she was given Outstanding entry. Further it is stated in the supplementary counter affidavit dated 24.8.2011 of Dr. K.P. Mishra that she received a bad entry in 2007-08, and that disciplinary proceedings were instituted against her under the U.P. Government Servant (Discipline and Appeal) Rules, 1999, for dereliction in official duty.
22. We do not find that the petitioner's complaint that she was not considered for promotion, and that juniors to her were promoted, is by way of any arbitrary, malafide or biased action by the respondents. She was considered for promotion from Level-3 to Level-4 on the basis of merit as criteria for promotion, and was not considered eligible, to be promoted in Level-4.
23. For the purposes of promotion in Level-4 the criteria in the Rules of 1998, for the post of which the maximum pay scale is Rs.18,300, is merit, which was considered by the respondents taking into consideration the petitioner's service records. There was no element of competition with other doctors in Level-3. The persons junior to the petitioner, had better service records. They were promoted ahead of the petitioner on the basis of merit. We do not find that any of the doctors, who were considered for promotion and were given promotion ahead of the petitioner, being lower in the seniority list, had service records, which did not entitle them for promotion on the basis of merit.
24. The writ petition is dismissed.
Dt.27.04.2012 SP/