Hon. Manoj Misra, J.
1. We have heard learned counsel for the petitioner. Learned Standing Counsel appears for the State respondents.
2. The petitioner was appointed on the post of Medical Officer by the order dated 18.10.1976 issued by the Director General, Medical and Health, Lucknow and joined at Ballia on 30.10.1976. He obtained M.S. degree in 1985-86. In July, 1997, he was posted as Senior Surgeon and was posted at District Hospital, Deoria. He was, thereafter, posted as Level-3 Medical Officer on 21.2.2003, and served as Consultant Surgeon at Orai-Jalaun vide Office Memo/ order dated 21.2.2003. He has since retired in the year 2010.
3. By office memo dated 20.5.2005 the department informed all the concerned that in view of the decision of the Supreme Court in Dr. Chandra Prakash & Ors. v. State of U.P., Writ Petition No.43 of 1998 decided on 4.12.2002, the criteria for promotion above the post of Joint Director is merit and the appointment/ promotion on the post of Addl. Director/ Director and Director General does not require the basis of seniority. The petitioner was placed in the seniority list dated 5.6.2003 at Sl. No.3625. By a subsequent Government Order dated 5.6.2003 the seniority list was amended in which the name of the petitioner was placed at Sl.No.3625. The petitioner's grievance began from 14.7.2005, when by Office Memo dated 14.7.2005 the Medical Officers, Level-3 were promoted to the post of Joint Director in Level-4 in the pay scale of Rs.14,300-18,300/-. It is alleged that a doctor junior to the petitioner namely Dr. Rajnu Prasad Tiwari at Sl. No.3647 was promoted. The petitioner submitted a representation dated 21.9.2005, with a reminder on 26.7.2007 without any result. The petitioner filed a Writ Petition No.1154 (SB) of 2007, which was disposed of on 21.9.2007 for deciding his representation.
4. The petitioner's representation was rejected by the Principal Secretary, Medical and Health on 6.12.2007, on the ground that he was not found eligible by the Departmental Promotion Committee.
5. It is submitted by learned counsel for the petitioner that in pursuance to the request made by the petitioner under The Right to Information Act, 2005, the ACRs of the year 2003-04 and 2004-05 were made available to him by letter dated 18.1.2006 in which he had received the entires of 'Ati Uttam' (very good) and 'Uttam' (good), which is said to be equivalent to '3' marks and thus the petitioner had '9' marks, which was higher than Dr. Lalita Singh Yadav, Seniority No.3643 and Dr. Shanker Murlidhar Ghuley, Seniority No.3650.
6. The petitioner sent another representation dated 19.8.2009 seeking justice as he had only six months to retire.
7. It is submitted by learned counsel for the petitioner that the petitioner has been discriminated in promotions. He has prayed for summoning the entire record of ACRs and to quash the order dated 6.12.2007 and 6.7.2009 passed by the respondent no.1.
8. In the counter affidavit of Shri Raj Kishore Yadav, Special Secretary, Medical, Health and Family Welfare, U.P. Lucknow, it is stated in paragraphs 13, 15, 16, 18 and 20 as follows:-
"13. That in reply to the contents of paragraph 20 of the writ petition, it is submitted that the informations sought by the petitioner under Right to Information Act was provided to him on 14.6.2009 and in point no.2 of the said information, it has been clarified to the petitioner that on the basis of the said seniority list dated 4.12.2002, the Medical Officers upto 3528 in the seniority list have been granted notional promotion in senior grade and in Joint Director Grade and the Medical officers upto the seniority of 4750 have been granted notional promotion in the senior grade vide Order dated 20.5.2005 and by the said order, the petitioner has also been given notional promotion w.e.f. 9.7.1997. However, no person junior to the petitioner has been granted promotion in Joint Director Grade by the aforesaid order dated 20.5.2005. It is made clear that due to inadvertence in the information given to the petitioner, his seniority was wrongly mentioned at Sl. No.4752 in place of Sl. No.4750 whereas the Medical Officers upto the seniority of 4752 were given notional promotion on level-4 post. The averments to the contrary are incorrect hence denied.
15. That in reply to the contents of paragraph 22 of the writ petition, it is submitted that annual confidential entries of Medical Officers of State Medical and Health Cadre is maintained in the office of the Director General, Medical and Health in which the candidates on the basis of said entry are categorized as 'Ati Uttam' and 'Uttam'. It is relevant to mention here that the Director General, Medical and Health has provided the Broad list regarding promotion to level-4 post of Joint Director and in pursuance thereof, the promotion of the petitioner has also been considered on the basis of his 10 years service record and annual confidential entry in which he was not found suitable and eligible for promotion hence he was not recommended by the departmental promotion committee for the said promotion.
16. That the contents of paragraph 24 of the writ petition are not admitted and in reply it is submitted that in the meeting of departmental promotion committee held in the year 2005, the petitioner on the basis of his service record was not found eligible for promotion to the post of Joint Director Grade. The annual confidential entries awarded to the petitioner in the year 2003-04 and 2004-05 was communicated by the Addl. Director, Jhansi Mandal in the year 2006 whereas aforesaid selection was held in the year 2005.
18. That in reply to the contents of paragraphs 26 and 27 of the writ petition, it is submitted that the informations sought by the petitioner under Right to Information Act was provided to him on 14.6.2009 in which it has been informed to the petitioner that in the metering of departmental promotion committee held on 2.9.2009, the name of the petitioner was duly considered for his promotion on level-4 post but since he was not found eligible for such promotion on the basis of unsatisfactory service record and as such his name was not recommended for the said promotion by the departmental promotion committee.
20. That in reply to the contents of paragraph 29 of the writ petition, it is submitted that the final seniority list of Medical Offices of State Medical and Health Services Cadre has been prepared on 5.6.2003 in compliance of the order passed b the Hon'ble Supreme Court dated 4.12.2002 passed in Writ Petition No.42 of 1998, and on the basis of the said seniority list, the Medical Officers upto 3528 in the seniority list have been granted notional promotion in senior grade and in Joint Director Grade and the Medical Officers upto the seniority of 4750 have been granted notional promotion in the senior grade vide order dated 20.5.2005. There is no order and direction of this Hon'ble Court that the promotion should be granted to the candidates on the basis of his seniority. As stated above, the criteria for promotion to level-4 is merit of the candidates and on the basis of the same, the case of the petitioner for his promotion was considered by the departmental promotion committee but since the petitioner was not found eligible for said promotion on the basis of his unsatisfactory service record and as such the name of the petitioner was not recommended for promotion by the departmental promotion committee."
9. Learned Standing Counsel has submitted on the basis of instructions received by him from the State Government vide letter of Deputy Secretary, Government of UP dated 13.12.2011, that the petitioner at Seniority no. 3625, was considered for promotion in DPC dated 20.6.2005. Since most of the entries in his ACR were not available, his consideration was deferred along with his post. He was again considered for promotion in DPC's dated 15.1.2008; 2.9.200 and 29.1.2010. On all the three occasions he was not found suitable for promotions according to the grading of minimum marks adopted by the Committees. Although there is no Government Order the grading is made in such a way that 18 marks are considered for promotion. For outstanding, very good and good remarks 3:2:1 marks respectively, and one minus mark for every adverse entry are given. The entries of last ten years are considered for promotion.
10. The promotions to Level-4 in the pay scale of Rs.14,300-18,300/- are governed by U.P. Government Servant (Criteria for Appointment by Promotion) (Second Amendment) Rules, 1998 notified on 10th June, 1998. The Rules provide for merit as the criteria for promotion to the post, which has the maximum of Rs.18,300/- in the pay scale. Since the post of Joint Director is in Level-4 of which old pay scale was Rs.14,300-18,300/-, the merit is the criteria for promotion to be considered by the Departmental Promotion Committee.
11. We find substance in the submission of learned Standing Counsel that on the basis of the seniority list dated 4.12.2002 in pursuance to the order passed in Dr. Chandra Prakash's case by the Supreme Court, Medical Officers upto Sl. No.3528 in the seniority list were granted notional promotion in the senior grade and in Joint Director's grade. The Medical Officers upto Seniority No.4750 were considered for granting notional promotion in the senior grade vide order dated 20.5.2005. The petitioner was also given notional promotion w.e.f. 9.7.1997. Since no person junior to the petitioner has been granted promotion in the Joint Director's grade by order dated 20.5.2005, he is not justified in having any complaint regarding his promotion, which was considered by successive DPC's and in which on the basis of his entries and criteria adopted, he was not found suitable.
12. The petitioner has since retired. He was considered for promotion to the Joint Director's grade on the basis of the annual confidential entires awarded to him in the year 2003-04 and to 2004-05 and which was communicated to him in the year 2006, whereas selection was held in the year 2005.
13. We do not find that the petitioner has suffered any discrimination. He was considered for promotion on his turn and was not found eligible to be promoted to Level-4.
14. The writ petition is dismissed.
Dt.27.04.2012 SP/