Surya Bhanu vs State of U.P. and Others

Dr. Surya Bhanu, petitioner is before this Court with a request to quash the order dated 30.10.2014 passed by Special Secretary, Government of U.P. Lucknow as well as the order dated 12.03.2014 passed by Director General, Medical & Health Service, U.P. Lucknow and further prayer has been made for issuance of writ in the nature of mandamus commanding the respondents to treat the candidature of the petitioner in order for Post Graduate Diploma courses against the 01 seat of D.A. (Diploma of Anesthesia) for years 2014-15 lying vacant under general category in Moti Lal Nehru Medical College, Allahabad and shall also be deemed to be eligible and qualified for the study for the Post Graduate Diploma Course of the D.A. (Diploma of Anesthesia) for years 2014-15 in the Moti Lal Nehru Medical College, Allahabad.

Brief background of the case as is reflected that petitioner was selected as Medical Officer under Provincial Medical & Health Services vide order dated 24.11.2006 passed by Principal Secretary Medical Section-03 Government of U.P. Lucknow and petitioner claims that since then he has been performing and discharging duties as Medical Officer of NPHC.

Petitioner submits that on 30.11.2012, applications were invited for study in the courses of the Post Graduate Diploma for 02 years in the short listed Medical Colleges for year 2013-14 amongst the candidates of M.B.B.S. Degree holders under P.M.H.S. category having experience of more than 05 years compulsory government services and if services has been render in Rural area (Community Health Centre/Primary Health Centre). Petitioner claims that he has also applied for consideration of his candidature and his application was forwarded on 21.12.2012 and panel has been published wherein petitioner''s candidature was not at all there. Petitioner further submits that seats were lying vacant under general category and has not at all been filled up and once again on - 3.12.2014 applications were invited for the year 2014-15 and petitioner once again applied for consideration of his candidature and once again his candidature has been forwarded but thereafter as nothing was done, he filed Civil Misc. Writ Petition No. 10025 of 2014 (Dr. Surya Bhanu Vs. State of U.P. and others) before this Court and this Court has asked the Director General General Medical & Health Services U.P. Lucknow to take decision and thereafter decision has been taken and claim of the petitioner has been rejected.

Now, petitioner has come up with case that he has applied for consideration of his candidature under general category for study of the course and seats meant for general category candidates were lying vacant in view of this, he was not opted to challenge the order dated 12.03.2014 passed by Director General General Medical & Health Services U.P. Lucknow within time on account of the fact that candidature of the petitioner was pending for consideration since 04.01.2014 in term of next notification dated 03.12.2013 issued by Director General General Medical & Health Services U.P. Lucknow for inviting application for the year 2014-15. Petitioner further submits that once again nomination order has been issued and petitioner''s candidature has not been considered. This much is also reflected that thereafter belated challenge has been made of the nomination order as well as the order passed by the Director General General Medical & Health Services U.P. Lucknow in the writ petition in question and this Court has proceeded to accord time to file counter affidavit and thereafter after pleadings inter se parties have been exchanged, this Court on 20.07.2015 and 29.07.2015 respectively has proceeded to pass following orders:

Order dated 20.07.2015

Prima facie it appears that the Director General, Medical & Health Services, U.P. does not understand that the seats which are ear-marked for General Category are open to persons belonging to all category including General Category, Other Backward Classes and Scheduled Class Category.

Prima facie because of little understanding of reservation by the Director General, we are faced with a petition wherein the order of the Director General is under challenge which records that since the petitioner belongs to Other Backward Classes, he cannot be considered for the seat which is for General Category.

Let the Director General, Medical & Health Services, U.P. appear before this Court along with his personal affidavit on 29.07.2015 for explaining the order passed by his. He may annex all such Government Orders as may be applicable on the subject. List on 29.07.2015.

Order dated 29.07.2015

Dr. Vijay Lakshmi, Director General, Medical & Health Services, Uttar Pradesh, Lucknow remain present in the Court on the next date. On her behalf a stand has been taken that since the petitioner is a member of Other Backward Class category which fact he had not mentioned in the form and claimed to be a member of General Category, therefore, he stands disqualified for the post which is for general category. We had already indicated in our order dated 20.07.2015 that the respondent authorities must understand the meaning of General Category, which in fact showed be termed as ''open category'' meaning thereby, that it is open to all and sundry including member of Other Backward Class Category, Scheduled Caste Category, Scheduled Tribe category as well as persons belonging to General Category. It is in fact unreserved category. But why will State authorities understand such common principle.

It has therefore, become necessary to ask the Chief Secretary of the State of Uttar Pradesh to file an affidavit categorically stating as to whether a person belonging to Other Backward Class category or for that purpose any other reserved category is not entitled to be included in the General Category, is he barred in any manner from claiming a seat which is earmarked for General Category.

The affidavit shall be filed along with relevant Government Orders. If the answer is in negative then he must take action against the authority who has passed the order impugned. The affidavit shall be filed by 10.08.2015.

Personal presence of the Director General is exempted.

It is made clear that if the affidavit is not filed on the said date, the Chief Secretary shall remain present before this Court with relevant Government Orders.

Put up this matter on 10.08.2015."

Pursuant to the order passed by this Court Chief Secretary of the State of Uttar Pradesh has filed affidavit and alongwith the same copy of the Government Order dated 08.08.2015 has been appended giving therein category that is to be adhered to in making nomination.

After pleadings have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties.

Sri B.L. Yadav, Advocate representing petitioner has contended that in the present case order that has been passed by the Director General General Medical & Health Services U.P. Lucknow is totally unwarranted order ignoring the basics of the case that even the case of reserved category candidates who have applied for consideration of their candidature under general category has to be considered from amongst general category candidates, as such action taken is per se bad and accordingly requisite relief be accorded to petitioner.

Learned Standing counsel on the other hand contended that rightful opinion has been formed at the said point of time and now Government Order has been issued, as such as on date no relief or reprieve can be accorded to the petitioner.

After respective arguments have been advanced, factual situation that has so emerged in the present case is that petitioner certainly has entered into service as OBC category candidate. It is also reflected from the record in question that at the point of time when he has proceeded to make application for being considered for pursuing course of Post Graduate Diploma, he applied for consideration of his candidature by requesting that his candidature to be considered as general category candidate.

Stand taken by Director General General Medical & Health Services U.P. Lucknow has been to the effect that as petitioner has proceeded to make mention in the form claiming himself to be member of general category, the State Level Selection Committee constituted by the Government, has not considered the candidature of petitioner, therefore his candidature stood disqualified for general category seats.

Even a member of OBC category can always apply for consideration of his/her candidature under general category, inasmuch as general category is not at all indicative of the fact that it is specifically meant for any specific category rather the general category converts itself into open category meaning thereby i.e. it is open to all i.e. it brings in its fold members of OBC category, scheduled caste category, scheduled tribes category as well as person belonging to general category Fact of the matter is that general category is not reserved for any category candidates rather it is open to all. In view of this, to say that OBC category candidate cannot apply for consideration of his/her candidature under general category i.e. open seats cannot be accepted by us and cannot be approved by us.

Petitioner has entered in service claiming the benefit of reservation, then the records that are maintained showing his category would always be "OBC". At all point of time whenever in service petitioner or any other similarly situated incumbents are obligated to disclose their category, the same will have to be on the lines of record maintained, therein you cannot proceed to change your category.

Once in form in question, petitioner or any other incumbent is required to disclose, as to whether he belongs to reserved category candidate or not then disclosure should honestly be made, failing which it would be a case of wrong declaration but this would not prevent reserved category candidate to apply for consideration of his candidature for general category i.e. open category. In view of this, once such is the factual situation, then it appears that Director General General Medical & Health Services U.P. Lucknow has been laboring under wrong impression.

Consequently, once such is the factual situation that has so emerged and we see from the record that remedial measure has already been taken clarifying the situation vide Government Order dated 08.08.2015, in view of this, the order that has been passed by the Director General General Medical & Health Services U.P. Lucknow which is impugned in the present writ petition is hereby quashed and set aside. Annexure-10 of the writ petition cannot be quashed by us, as it is list of selected incumbents, who are not at all before us and qua the same no infirmity has been pointed out, rather suggestions have been made that three seats for Diploma of Gynecology at Medical College, Allahabad is lying vacant. However, we proceed to pass order mentioning therein that as academic session 2014-15 is already over, we cannot pass order, at this stage according admission to petitioner in academic session 2015-16 but certainly for ensuing next academic session, it would be open for the petitioner to apply for consideration of his candidature and it is expected that candidature of the petitioner would be dealt with in accordance with law. For vacant seats as disclosed, the petitioner can approach State Government but State Government, if it is to take decision, should consult Medical Council India and respective Medical College, to find out as to whether it is legally feasible or not.

With the above observation/direction present writ petition is allowed.