Baleshwar Ram and Others vs State of U.P. and Another

Arun Tandon, J.—Heard Learned Counsel for the Petitioner and learned standing counsel for the State-Respondents.

Petitioners, before this Court, who are three in number claim to be initially appointed in Sri Durga Ji Homeopathic Medical College and Hospital, Chandeshwar, Azamgarh, Government Homeopathic Medical College and Hospital, Ghazipur and Sri Durga Ji Homeopathic Medical College and Hospital, Chandeshwar, Azamgarh respectively. According to the Petitioners, they were appointed on 11.8.1975, 3.8.1972 and 20.7.1975 respectively on the posts of Second Clerk, Assistant Clerk and Cashier respectively. It is then stated that the Petitioner No. 1 was granted senior scale of Rs. 230-380 w.e.f. 1.8.1977 and thereafter, he was promoted as accountant on 6.3.1980. According to the Petitioner No. 2 he was granted promotion as accountant on 1.4.1973.

Both the aforesaid medical colleges and hospitals were provincialized by the State of Uttar Pradesh vide notification dated 11.12.1981. In the provincialisation notification, it was specifically provided that so long as the State Government does not take final decision in the matter of categorization and absorption of the staffs of the medical colleges and hospitals so provincialized, employees shall continue to draw the salary in the same scale as they were getting on the date of provincialization. The Government order dated 11.12.1981 specifically provides that the employees concerned will have an option to opt for the Government employment or to refuse the same. Qua the employees who opt Government service after such provincialization, the State Government shall take a decision having regard to their qualifications and the duties discharged qua absorption in the Government service and such decision of the Government had been made final. The Petitioners were opted for absorption as Government servants under the provincialization order.

the State Government vide order dated 25/26.8.1987 absorbed the Petitioners as junior clerk in the pay-scale of Rs. 354-550. Copy of the Government order dated 25/26.8.1987 has been enclosed as Annexure-7 to the writ petition, and amongst the others it is specifically recorded that the matter was examined by the State Government and with reference to the posts available in the Government National Homeopathic Medical College and Hospital, Lucknow, the employees of the provincialized medical colleges and hospitals have been absorbed as Government servants on the respective posts having regard to the posts available and the qualifications possessed by the employees concerned.

Petitioners not being satisfied, have approached this Court by means of the present writ petition alleging therein that their absorption as junior clerk is legally not justified as the Petitioner No. 1 and petition No. 2 were holding the posts of accountant while the Petitioner No. 3 was holding the post of cashier on the date of provincialization. Therefore, they are entitled to be absorbed against the aforesaid posts only and to the pay-scale admissible to the said posts. It appears that during the pendency of the writ petition, their representations for the purpose were considered by the Director, Homeopathic, U.P. at Lucknow. He by means of the order dated 4.9.2002 enclosed as Annexure-1 to the amendment application, held that it is not practically possible to re-designate the Petitioners in the manner they had prayed for. They would be treated as junior clerks only. Letter of the Director specifically records that the State Government had taken a decision in the matter in terms of the provincialization order. Order of the Director has been challenged by means of the amendment application.

I have considered the submissions made by the Learned Counsel for the parties and have examined the records of the present writ petition.

The Government order of provincialization referred to above categorically provided that the employees and staffs of the institution which were being so provincialized, may either opt for absorption as Government employees or they may refuse to do so. There was a specific condition in the order of the provincialization that existing staffs would be entitled to be absorbed on permanent basis in Government service in accordance with the decision to be taken by the State Government, having regard to the relevant factors mentioned therein.

The Petitioners opted for absorption as Government servants with open eyes. The State Government, with reference to the posts available in Government National Homeopathic Medical College and Hospital, Lucknow and the qualifications prescribed therein, considered individual cases of the staffs of the private medical colleges and hospitals like the Petitioners and decided that they be absorbed against the respective posts, as detailed in the Government order dated 25/26.8.1987.

The present writ petition is completely silent qua any infirmity in the decision taken by the State Government. It is not the case of the Petitioners that they were possessed of the prescribed minimum qualifications for the post of accountant and cashier as is applicable to the accountant-cum-cashier of Government National Homeopathic Medical College and Hospital, Lucknow. It is also not their case that they had been promoted on the post of accountant/cashier in accordance with Rules, which were applicable to the employees of Government National Homeopathic Medical College and Hospital, Lucknow. Except for contending that they were earlier promoted by the Private Medical Colleges and Hospitals, no material facts have been brought on record to substantiate that such promotion was under any statutory provisions and if so, after following the procedure prescribed or not.

Learned Counsel for the Petitioners however, refers to an order of the Principal of the Private Medical College and Hospital, which records that from the date of provincialization, the appointment of the Petitioners as accountant/cashier stands regularised. Such order of the Principal is wholly without jurisdiction and of no legal consequence, inasmuch as it was the State Government alone under the provincialization Government order to determine the posts against which the Petitioners were to be absorbed. In the facts of the present case decision taken by the State Government with reference to the posts available in Government National Homeopathic Medical College and Hospital, Lucknow, cannot be said to be arbitrary or without any basis. In the totality of the circumstances as are on record, this Court finds no good ground to interfere in the matter.

The present writ petition is accordingly dismissed.