Smt. Asha Kumari vs State of U.P. and Others

Hon''ble Rakesh Tiwari, J.—Heard learned counsel for the parties and perused the record. This special appeal has been filed challenging the validity and correctness of the judgment and order dated 29.9.2008 passed in Civil Misc. Writ Petition No. 51205 of 2008, Smt. Asha Kumari v. State of U.P. and others, whereby the aforesaid writ petition had been dismissed.

The facts culled out from the record in a nut-shell are that the petitioner was appointed as Sweeper on 15.2.2005 by the Competent Authority after following due procedure. On 8.5.2008 the appellant being well qualified and having sufficient experience of working as ''Dai'' moved an application before the Regional Joint Director (Health) and Chief Medical Superintendent, District Women Hospital, Agra stating therein that the work of ''Dai'' be taken from her. Her application having been approved and allowed by the respondents, she was allowed to perform her duties as ''Dai''. An entry to this effect has been made in her service book by the competent authority.

It is stated that thereafter in the first week of September, 2008 the appellant got knowledge about the impugned orders dated 21.8.2008 and 25.8.2008 passed by the respondents by which she was restrained from performing the duties of ''Dai'' Therefore, the impugned orders are illegal and void abinitio.

The instant special appeal has been filed challenging the aforesaid impugned order on the grounds that the posts of Sweeper and ''Dai'' are class IV post, both are non-technical posts for which essential qualification, salary and other emoluments are the same; that merely by changing her post from Sweeper to ''Dai'' the status of post would not change in the aforesaid conditions; that the hospital where the appellant is working is for females only and work of ''Dai'' is required more than the work of Sweeper; that the appellant is having experience of ''Dai'' and is the competent authority considering this fact merely has changed her post from Sweeper to ''Dai''. He has not committed any illegality. It is also stated that that the impugned order challenged in the writ petition has been passed ex parte without affording any opportunity of hearing to the appellant but this aspect has not been considered in the impugned judgment and order, hence the same being erroneous on facts and in law, is liable to be quashed by this Court.

It appears that on the application of the appellant that she has experience of ''Dai'' work of this post may be taken from her instead of the work of Sweeper. However, apart from taking work from her on the post of ''Dai'' her designation was also changed to ''Dai'' in her service record. Therefore, the Chief Medical Superintendent, (Female) Hospital at Agra by her letter dated 10.7.2008 sought guidance from the Director General, (Medical and Health Services), U.P. In response thereof, the Director General U.P. by his letter dated 21.8.2008 informed the Chief Medical Officer that there are no Government orders for changing the designation of a class IV employee and therefore, the order 31.5.2009 passed by the Chief Medical Superintendent, Agra changing the designation of the appellant is illegal. He therefore, directed that Smt. Asha Kumari be shown as having been appointed on her substantive post as Sweeper in the service book i.e. the post on which the appellant had been initially appointed. The letter/order dated 21.8.2008 reads thus :

Accordingly, by order dated 25.8.2008, Chief Medical Superintendent, (Female) Hospital at Agra informed the appellant that in pursuance of the order dated 21.8.2008 she would be working as Sweeper on her post on which she was appointed that order of charge of designation from Sweeper to ''Dai'' was cancelled and correction accordingly be made in her service book. The order dated 25.8.2008 reads thus :

It is these two orders dated 21.8.2008 and 25.8.2008 which have been impugned in Civil Misc. Writ Petition No. 51205 of 2008. The aforesaid writ petition was dismissed vide judgment and order dated 29.9.2008. For ready reference it is reproduced below.

Heard learned counsel for the petitioner as well as learned Standing counsel for the respondents and have perused the records.

The petitioner was appointed as Sweeper. She claims that she be permitted to work as Aaya (maid) on which post she has sufficient experience. The application of the petitioner in this regard has been rejected on the ground that there is no such rule to permit a Sweeper to work as Aaya (maid), learned counsel for the petitioner has also, in this writ petition, not been able to show any provisions or rule under which a Sweeper can be asked to work as Aaya (maid).

The petitioner was selected as Sweeper and she could have had some grievance if work of Sweeper was not taken and some other work was being taken. In the present case, the respondents want the petitioner to work as Sweeper on which post the petitioner had been appointed and thus she cannot have any such grievance.

The writ petition is dismissed.

It is in the aforesaid facts that petitioner has sought relief of quashing the impugned orders dated 21.8.2008 and 25.8.2008 (Annexures 1 and 2 to the writ petition) passed by the respondents. The petitioner has also prayed that a direction may be issued to the respondents to regularize his services on the post of ''Dai'' and she may be allowed to perform her duties as ''Dai'' without any interruption.

Sri Ashok Pal Singh (A.P. Singh), Advocate holding brief of Sri Jai Narain, learned counsel for the appellant has not advanced any oral arguments except requesting the Court to notice the grounds which have been taken in the special appeal.

Learned Standing counsel submits that the appellant may be having experience of ''Dai'' but she was initially appointed on the post of Sweeper. He submits that in absence of any rule or regulation for change of designation of an employee of Health department the appellant cannot be designated as ''Dai'' in place of Sweeper. According to him, it is wholly irrelevant that both the Sweeper and ''Dai'' are class IV posts having same procedure and qualifications for appointment, also having emoluments and salary and that by changing her designation from Sweeper to ''Dai'' would not change her status. He has also refuted the grounds relied upon by the learned counsel for the appellant stating that the judgment of the learned Single Judge is not erroneous on facts and in law as the appellant has not been able to establish any illegality or infirmity in the impugned judgment on facts and in law. Merely having experience of ''Dai'' would not entitle the appellant for change of her designation from the post of Sweeper to post of ''Dai''

After hearing learned counsel for the parties we are of the opinion that essential qualifications and procedures for appointment on the post of Sweeper and ''Dai'' are the same and what matter is that the strength of the sanction post of ''Dai'' and Sweeper is distinct and separate. Admittedly, also the petitioner has moved an application for allowing her to work as ''Dai'' but she has not moved any application for changing her post from the post of Sweeper on which she was initially appointed and was working to the post of ''Dai She has also not made any request for changing designation in her service record in anticipation of her designation being changed to the post of ''Dai'' from the post of Sweeper. No Rules or Regulations or Government Orders provide for change of designation in such matter for the simple reason that sanction strength of establishment consist of different posts and if designation is changed according to the whim of the authority, the sanction of post would loose its importance for example if the designation of the appellant is changed as ''Dai'' and an entry to this effect in her service book is accordingly made, a post of Sweeper would become vacant whereas post of ''Dai'' came into existence in excess strength of post of ''Dai'' sanctioned by the Government. The appointments are strictly adhered according to the sanctioned post. Therefore, the Director General in his order dated 21.8.2008 in this regard has rightly observed that in absence of any Rule or Regulation or Government Order neither the post of designation can be changed nor the service record could be corrected by making any entry in this regard. Once the order of the Director General dated 21.8.2008 is upheld by us, the consequential order dated 25.8.2008 passed by the Chief Medical Superintendent (Female) Hospital at Agra would also be upheld. The appellant has utterly failed to establish that her designation could have been changed in absence of any Rule or Regulation or provisions or Government Orders. There is no illegality or infirmity in the impugned judgment and order, hence no interference is required by this Court in it in this appeal. For the reasons stated above, the special appeal is accordingly, dismissed. No order as to costs.