Bhikhari Singh Parihar vs State of U.P. and Others

Anil Kumar, J.—Heard Shri I.H. Farooqui, learned counsel for the petitioner, Shri V.S. Tripathi, learned Additional Chief Standing Counsel and perused the record.

The controversy involved in the Writ Petition No. 7756 (SS) of 2007 and Writ Petition No. 1818 of 2008 are identical in nature, so with the consent of learned counsel for parties the writ petitions are heard and disposed of together.

Facts in brief of the present case as submitted by learned counsel for the petitioner are to the effect that the petitioners are working on the post of Dark Room Assistant in the department of Medical & Health, Sachivalay, Lucknow, posted at District Hospital in different district in State of U.P.

Learned counsel for the petitioner further submits that in order to consider their case for promotion to the next higher post of X-ray Technician they were required to undergo training by order dated 16.3.2000 passed by Director General, Medical and Health U.P., Swasthya Bhawan, Lucknow. Accordingly, sent for training, completed successfully. Thereafter sent to their original post to work and discharge their duties i.e. post of Dark Room Assistant.

On 12.11.2007, an advertisement has been issued by the official respondent for filling up various posts as contained in Annexure No. 1 to the writ petition and in the said advertisement at serial no. 5, there are 66 posts of X-ray Technician to be filled up by way of direct recruitment.

Aggrieved by the said facts, the present writ petitions have been filed before this Court.

Learned counsel for the petitioner submits that the action on the part of the official respondent thereby proceeding to fill up the post of X-ray Technician in the Medical and Health U.P., Swasthya Bhawan, Lucknow by way of direct recruitment and not considering the case of the petitioners who are working on the post of Dark Room Assistant and are fully eligible to be promoted under 20% quota for the post of X-ray Technician, is illegal and arbitrary exercise on their part thereby issuing advertisement to fill up the post by direct recruitment, liable to be set aside. In this regard, he places reliance on the document as contained in Annexure No. 6 to the writ petition by which it is specifically provided that 20% of the total post of X-ray Technician shall be filled up by way of promotion amongst those persons who are working on the post of Dark Room Assistant.

Learned counsel for the petitioners also submits that in view of the document/letter dated 24.6.2000 (Annexure No. 5 to the writ petition) issued by the Secretary, U.P. State Medical Faculty requisite qualification for the post of X-ray Technician which is to be filled up by way of promotion amongst the employees working on the post of Dark Room Assistant under 20% quota is that they have completed the training and passed the High School Examination with Science Subject.

On 11.12.2007, this Court passed an order, the relevant portion of the same is quoted hereinbelow:-

Accordingly, till further orders of this Court, the appointment and selection in pursuance of the impugned advertisement contained in Annexure No. 1 to the writ petition shall remain stayed.

In addition to the abovesaid facts, learned counsel for the petitioner further submits that in identical circumstances, on 12.1.2012 this Court at Allahabad passed an order in Writ Petition No. 68629 of 2009 "Brijesh Kumar & Another vs. State of U.P. & Another" reproduced hereinbelow"-�

In the present case, petitioner submits that he is also entitled to the benefits as has been extended to Mankeshwar Sharma in writ petition No. 13087 of 2007 on the premises that the Government Order dated 29.02.1988 provides that 25% posts of X-Ray Technicians may be filled up by appointing the Dark Room Assistant after they have completed training of X-Ray Technician. In the said circular qualifications for being sent for training as X-Ray Technicians are also specified. The minimum qualifying service for the said purpose was fixed as five years. Said Government Order further proceeds to mention that if the selected candidates candidate complete their training of X-Ray Technicians successfully, they shall be appointed against the vacant posts of X-Ray Technicians in the pay scale of Rs. 1350-2000/-. Petitioner submits that he fulfills each and every requisite formalities as provided in the aforesaid Government Order, but the respondents are not considering his claim.

Consequently, in the facts of the case, Director General, Medical and Health, U.P. Lucknow is directed to consider the claim of petitioner and take appropriate decision, in accordance with law, within next two months from the date of receipt of a certified copy of this order.

Writ petition stands disposed of accordingly.

Learned counsel for the petitioner further submits that the aforesaid order has been passed by this Court in Writ Petition No. 68629 of 2009 "Brijesh Kumar & Another vs. State of U.P. & Another", after placing reliance on earlier judgment given by this Court dated 20.10.2008 in Writ Petition No. 13087 of 2007 "Mankeshwar Sharma vs. State of U.P. & Ors.", the relevant portion of the same is reproduced hereinunder:-

In the present case, a perusal of the impugned order dated 12th February, 2007 indicates that an order appointing the petitioner as X-Ray Technician has not been issued as he had been given the training of X-Ray Technician even though there is no provision for giving training to such Dark Room Assistants in the Dark Room Assistants Rules 1998 and nor is there any provision in the 1986 X-Ray Technicians Service Rules, providing for any appointment of such Dark Room Assistants who have completed their X-Ray Technician training.

It is, therefore, apparent that the same reasons have been mentioned in the impugned order as were taken by the respondents for not making payment of salary to such persons who had in fact been given appointment orders as X-Ray Technician.

Thus, while certain Dark Room Assistants had been appointed on the post of X-Ray Technician after successfully completing the training on the basis of the Government Order dated 24th January, 1997, the petitioner was not appointed as a X-Ray Technician. In view of the case of Ashok Kumar & Ors., (supra), with which I have no reason to differ, the petitioner is clearly entitled for appointment as X-Ray Technician and also for payment of salary as X-Ray Technician. The respondents shall forthwith appoint the petitioner as X-Ray Technician and pay him salary on the post of X-Ray Technician.

In the light of the abovesaid facts, learned counsel for the petitioner submits that the same benefit may be given to the present petitioners also.

Shri V.S. Tripathi, learned Additional Chief Standing Counsel relies on the averments made in paragraph nos. 17 and 20 of the counter affidavit on behalf of the official respondent in Writ Petition No. 7756 (SS) of 2007 "Bhikhari Singh Parihar vs. State Of U.P. & 2 Ors., and paragraph 8 of the counter affidavit in Writ Petition No. 1818 (SS) of 2008 "Irshand Mohammad vs. State Of U.P. & Anr., Shri V. S. Tripathi" which are reproduced hereinbelow:-

Para 17 - That it is submitted that after completion of training of X-Ray Technician, 26 candidates were directed to look after the work of X-Ray Technician in public interest under temporary arrangement, with the condition that they would not be paid the extra salary/allowances or honorarium for the same; rather, only the salary of the Dark Room Assistant would be admissible to them. It is submitted that in pursuance of the orders passed by this Hon''ble Court, 12 candidates out of aforesaid 26 candidates are getting salary for the post of X-Ray Technician, whereas, their lien is with the cadre of Dark Room Assistant.

�Para 20 � That at present the State Government has granted permission to fill up the 92 posts of X-Ray Technician. It is submitted that since the matter of the aforesaid 26 candidates who had been directed to look after the work of X-Ray Technician, is under consideration before the State Government, as such, after reserving the 26 posts for the aforesaid candidates only 66 (92-26=66) posts of X-Ray Technician are advertised by means of the advertisement dated 12.11.2007. It is further submitted that if the petitioner wants his appointment on the post of X-Ray Technician, he may apply for the same, as on the basis of the completion of training of X-Ray Technician he has become eligible to apply for the post of X-Ray Technician.�

�Para 8 � That regarding paragraphs 9 and 10 it is stated that the petitioner does not fulfill the qualification having diploma certificate of X-Ray Technician from recognized U.P. Medical Faculty or its equivalent which is essential qualification under the Rules/advertisement for appointment to the post of X-Ray Technician. Hence the petitioner was not qualified for being appointed as X-Ray Technician. In compliance of the the judgment dated 31.10.2007 the case of the petitioner was considered and he was not qualified as per the Rules as well as there being no provision for promoting/appointing Dark Room Assistant to the post of X-Ray Technician hence, the representation of the petitioner was rejected by order dated 4.3.2008.

In view of the abovesaid fact, Shri V.S. Tripathi, learned Additional Chief Standing Counsel submits that in Medical & Health Services, State of U.P. at the relevant point of time 92 posts are vacant and decision is taken to fill up the 66 posts out of said vacant posts of X-Ray Technician by way of direct recruitment, hence an advertisement has been issued for the said purpose. Accordingly, present petitioners who are working on the post of Dark Room Assistant in the District Hospital, State of U.P., governed by the Rules known as Dark Room Assistant Service Rules 1988 have got no right or locus to file the present petition before this Court, liable to be dismissed.

In rebuttal, learned counsel for the petitioner has denied the argument as advanced by learned Additional Chief Standing Counsel that in Writ Petition No. 1818 of 2008 the petitioner does not possess the requisite qualifications for consideration his case for promotion on the post of X-Ray Technician because he has completed the training of diploma course in X-Ray Technician from the institution known as B.R.D. Medical College, Gorakhpur, recognized by Health and Medical Services, U.P., Lucknow.

After hearing learned counsel for the parties and going through the records, undisputed facts which emerge out in the present case are that the petitioners who are working on the post of Dark Room Assistant in the Medical and Health Services, State of U.P., posted at District Hospital in the different cities of State of U.P., have completed the training successfully in diploma course of X-Ray Technician from the institution recognized by Health and Medical Services, U.P., Lucknow.

Further from the material on record, it transpires rather established that so far as the employees who are working on the post of Dark Room Assistant are concerned, they are governed by the Rules known as The U.P. Medical and Health Department Dark Room Assistant (Non-Gazetted) Service Rules 1998.

The Rules 5 of the said Rules provides for the source of recruitment which is being quoted as under:-

5 Source of Recruitment- Recruitment to the various categories of post in the service shall be made from the following sources;

Dark Room Assistant � By direct Recruitment through the Selection Committee.

Rule 8 of the said rules provides for the requisite academic qualification for the post of Dark Room Assistant, which is being quoted as under:-

Academic qualification � A candidate for direct recruitment to the post of Dark Room Assistant in the service must have passed Intermediate Examination with Science of the Board of the High School and Intermediate Education, or an examination recognized by the Government as equivalent thereto.

So far as the appointment on the post of X-Ray Technician is concerned, it is governed by Rules known as The U.P. X-Ray Technician Service Rules, 1998 and taking into consideration the said rules as well as document/letter dated 26.4.2006 (Annexure No. 5) issued by the Secretary, State Medical Faculty wherein it is provided that the requisite qualification for the post of X-Ray Technician which is to be filled up by amongst those employees who are working on the post of Dark Room Assistant under 20% quota is to the effect that they have completed the training and passed the High School Examination with Science Subject and the present petitioners were sent for training by the official respondent for considering their case for promotion on the post of X-Ray Technician, thereafter, they have successfully completed the training as well as the judgment passed by this Court in the case of Mankeshwar Sharma (supra) and Brijesh Kumar (supra) and the fact sated in paragraph 20 of the counter affidavit filed in Writ Petition No. 7756 (SS) of 2007 the interest of justice will sub-serve in the present case as agreed between the parties that opposite parties be directed to consider the claim of the petitioner on merit in accordance with law.

For the foregoing reasons, after hearing learned counsel for the parties, in the interest of justice, as agreed between the parties, writ petition is disposed of with a direction to the petitioners to move a fresh representation to opposite party no. 2 i.e. Director General, Medical & Health, U.P., Swasthya Bhawan, Lucknow within three weeks from today in respect to their grievances which they have raised in the present writ petition annexing all relevant documents and materials in support of their case and after receiving the same the O.P. No. 2 shall consider and dispose of by way of speaking and reasoned order in accordance with law within a further period of six weeks and taking into consideration the order dated 12.1.2012 passed in Writ Petition No. 68629 of 2009 and order dated 20.10.2008 passed in Writ Petition No. 13087 of 2007 is taken a decision by the opposite party no. 2 in the matter in question within a period of nine weeks, in the instant case, on 11.12.2007, an order was passed by this Court shall remain in course.