This writ petition has been filed with a prayer to command the respondents to consider petitioner's claim for regularization treating his candidature to be covered by the Uttar Pradesh (Lok Sewa Aayog Ke Kshetrantragat Padon Par) Tadarth Niyuktion Ka Viniyamitikaran, Niyamawali, 1979, as amended from time to time. The order dated 10th October, 2012 rejecting petitioner's claim for regularization has also been assailed by way of an amendment, which has been allowed today by a separate order passed on the amendment application.
Though the petition has been filed on behalf of an association, but it has been pressed with reference to the claim of petitioner no.2, who has appeared in person.
It transpires that respondent no.3 i.e. Director, Unani Services, U.P. advertised about 1400 posts for appointment to the post of Medical Officer in Unani, Ayurvedic and Medical Officer Community Health. Petitioner no.2 applied for the post of Unani Medical Officer and was called for interview. A select list was drawn in the year 1988, which did not include the name of petitioner no.2. A writ petition came to be filed before the Lucknow Bench of this Court by Ayurvedic Doctor's Association, Lucknow and others, being Writ Petition No.5495(S/B) of 1988, wherein a direction was issued on 26th October, 1999 to draw the select list afresh in light of the observations made therein. The order passed by the Writ Court attained finality and ultimately an order of appointment was issued to petitioner on 4.7.2000. By this order various persons were appointed in Ayurveda, Unani and other streams. Name of petitioner no.2 finds mention in the category of Unani (General Category).
The petitioner subsequently approached this Court by filing Writ Petition No.3064 of 2012, which came to be disposed of vide following orders passed on 31.7.2012:-
"We have heard petitioner in person and learned Counsel for State.
It appears that petitioner was appointed in the year 2000 on ad-hoc basis for one year or till the candidates regularly selected by the State Public Service Commission were made available. It also appears that petitioner's services continued and now he is praying for regularization at par with candidates who were selected in the year 1988. Prima-facie, it appears that petitioner's case would be governed by the provisions of "Uttar Pradesh (Lok Sewa Aayog Ke Kshetrantragat Padon Par) Tadarth Niyuktion Ka Viniyamitikaran, Niyamawali, 1979" which has been amended from time to time.
However, it is not clear from the rival submissions as to under which amended provisions the relief prayed for can be considered, therefore, as per consensus , we dispose of this petition with direction to authority concerned to decide and dispose of the pending representation of petitioner, whereunder he has sought regularization at par with the selectees of 1988, within a time frame of four weeks from the date of receiving a copy of this order.
Writ Petition, thus, stands disposed of with the aforesaid direction."
The claim of petitioner for regularization, however, has been rejected on 10th October, 2012 on the ground that in the Regularization Rules of 1979, as amended, the cut off date for adhoc appointment is 30th June, 1998, whereas the petitioner's appointment was made on a subsequent date i.e. 4.7.2000.
Petitioner submits that those who were appointed alongwith petitioner have been regularized under the Regularization Rules of 1979 on different dates but similar treatment has been denied to him. Attention of the Court has been invited to an order of the State Government dated 30th November, 2015 pursuant to directions issued by the Lucknow Bench of this Court in Writ Petition No.279 (S/B) of 2012 (Dr. Gagan Shanker Ojha and others Vs. State of U.P. and others). Claim of identically placed persons was considered by this order which included adhoc doctors appointed on the same date i.e. 4.7.2000. Such persons have been regularized w.e.f. 16.3.2005. Another writ petition filed before this Court, No.23809 of 2012, by Dr. Satish Kumar Upadhyay and others has also been allowed, vide following orders passed on 8.4.2016:-
"..........
The petitioners were not selected and, consequently, several writ petitions were filed in the year 1988 in which the thrust of argument was that allocation of 30% marks for interview was arbitrary. The writ Court by a judgment dated 12.04.1994 allowed the writ petitions and reduced viva voice marks from 30% to 15% directing the State Government to recalculate the marks of candidates whether selected or not selected and after calculating the marks fresh select list should be prepared and appointment be made from that list. The State Government challenged the order of the High Court by filing the SLP before the Supreme Court, which was dismissed on 08.08.1996. Inspite of the order of the High Court, the judgment was not implemented. This lead to a second round of litigation, which was allowed by the judgment dated 26.10.1999. The Writ Court in Writ Petition No.19695 of 1999, Ayurvedic Doctors' Association and others Vs. State of U.P. and others and other companion writ petitions decided on 26.10.1999 observed that the entire controversy, which had started in 1988 and which could not be culminated into any positive action, at least should now be set at rest for all times to come. The Court observed that it was unfortunate that those candidates who were appointed in 1988 had to languish for over 11 years for no fault of theirs. The Court further observed that the Court has to undo the wrongs which they were subjected to during these intervening years. The Court, accordingly, issued a mandamus commanding the State Government to implement the judgment.
Based on the said judgment, the select list was revised and implemented and the petitioners along with large number of similarly situated persons were appointed on 27.03.2000 and 16.01.2001 on ad hoc basis. The petitioners made an application for regularization of their services, which was rejected by the impugned order dated 18.08.2011 on the ground that their appointment was made after the cut off date dated 30.06.1998 as provided in The Uttar Pradesh Regulation Of Ad hoc Appointments (On Posts Within The Purview Of The Public Service Commission) Rules, 1979 and therefore their services could not be regularised. The petitioners, being aggrieved by the rejection of their claim, have filed the present writ petition.
During the course of hearing, the Court noticed a Government Order dated 30.11.2015, which has been annexed as SA-1 to the Supplementary Affidavit dated 03.01.2016/06.01.2016. A perusal of this Government Order dated 30.11.2015 indicates that pursuant to an order dated 14.05.2015 passed by the writ Court in Writ Petition No.279 (SB) of 2012, Dr.Ganga Shankar Ojha And Ors. Vs. State of U.P & Ors., 22 similarly situated persons, who were appointed on the same date have been regularized with effect from 16.03.2005. This fact has not been disputed by the learned Standing Counsel.
We are of the opinion that when similarly situated persons are being regularized by the State Government, there is no reason why the petitioners should be discriminated.
Consequently, on this short ground, we allow the writ petition and quash the impugned order and remit the matter again to the Principal Secretary, Deptt. of Medical Education, U.P. to reconsider the case of the petitioners and pass appropriate orders within 08 weeks from the date of presentation of a certified copy of this order after considering the order dated 30.09.2015 passed by the Principal Secretary, Deptt. of Medical Education, U.P. "
It is contended that petitioner being identically placed cannot be discriminated.
Facts as have been noticed above are not in dispute.
Learned Standing Counsel states that the authorities of State be permitted to re-visit the issue in light of the directions already issued by the Division Bench of this Court in Writ Petition No.23809 of 2012, as also the Government Order issued on 30.11.2015.
From the facts as have been noticed above, it is apparent that claim of identically placed persons has already been allowed by this Court and directions were issued to consider claim of similarly placed persons for regularization in accordance with the Regularization Rules of 1979. Petitioner's claim for regularization was required to be considered treating his initial appointment from a date prior to cut off date i.e. 30th June, 1998. There is no reason for this Court to take a different view in the facts of the present case as it is found that claim of petitioner is identical.
In that view of the matter, this writ petition succeeds and is allowed. Order dated 10th October, 2012 is quashed. Matter stands remitted to the respondent no.2 to consider petitioner's claim for regularization, in light of the order passed by this Court, noticed above, as also the order passed by the State Government itself on 30.11.2015, within a period of three months from the date of presentation of a certified copy of this order.
It goes without saying that all consequential benefits shall be extended to petitioner without any further loss of time.
Order Date :- 18.2.2021 Anil Hon'ble Ashwani Kumar Mishra,J.
(Ref:- Amendment Application No.7 of 2019) Heard.
Application is allowed.
Petitioner is permitted to carry out necessary amendment, during the course of the day.
Order Date :- 18.2.2021 Anil