Dr. Om Prakash Tiwari vs State of U.P. and Others

We have heard Shri Ajay Bhanot, learned counsel for the petitioner. Shri Rajeev Mishra appears for the respondent no. 4. Learned Standing Counsel represents the State respondents.

The issue of officiating appointment on the post of Regional Ayurvedic and Unani Officer, Varanasi has been taken up again after an interim order was passed on 8.7.2010 in Writ Petition No. 39225 of 2010.

The petitioner is aggrieved by the order dated 1st August, 2011 by which Dr. Jagdu Ram Patel, Medical Officer, Rajkiya Ayurvedic Chikitsalaya, Uttaroth, Chandauli has been handed over the charge of Regional Ayurvedic and Unani Officer, Varanasi. The order has been challenged on three grounds namely that the petitioner is senior to Dr. Jagdu Ram Patel in as much as the petitioner was appointed in the year 1978 on adhoc basis, and Dr. Jhagdu Ram Patel was appointed by direct recruitment through U.P. Public Service Commission on 31.10.1985.

It is submitted that the petitioner cannot be denied benefit of the adhoc services. His appointment on adhoc services was made in accordance with the Rules at the relevant time and thus he is senior to Dr. Jhagdu Ram Patel. It is further submitted that the petitioner was asked to hand over the substantive post of Medical Officer and was given the officiating charge of Regional Ayurvedic and Unani Officer, Varanasi. He does not hold any substantive charge to revert back and to continue to work and that Dr. Patel under the policy of the department could not be posted in his home district at Varanasi.

In the interim order dated 8.7.2010 we had observed that until the dispute relating to seniority as reflected in seniority list drawn in 2001 is decided, the rule of seniority in the existing seniority list subject to the order of the Tribunal, which was holding the field on that date, should be followed. We had consequently stayed the appointment of Dr. Jhagdu Ram Patel as Regional Ayurvedic and Unani Officer. Consequently Dr. Sant Prasad Tripathi was allowed to officiate. He has since retired.

We are informed that in the meantime the judgment of the Tribunal to give benefit to adhoc services was set aside by the High Court in Writ Petition No.990 (SB) of 2010 on the ground that the persons, who were going to be affected by the judgment of the Tribunal were not made parties to the proceedings. The High Court set aside the order of the Tribunal dated 17.5.2010, and by its judgment dated 21.12.2010 remanded the matter back to the State Public Service Tribunal to decide the claim petition expeditiously.

The effect of the judgment of the High Court is that the old seniority list of the year 2001 still stands, and should continue to operate until the final judgment is delivered by the Tribunal.

It is not denied that Dr. Jhagdu Ram Patel though appointed directly through the Commission on 31.10.1985 is shown as senior to the petitioner in the seniority list of the year 2001, and thus he, at present in accordance with the operative seniority list as on date, is senior to the petitioner.

The argument that the petitioner does not have substantive post to revert back will not entitle him to continue as Regional Ayurvedic and Unani Officer. The State Government will pass a consequential order giving him regular posting.

So far as the argument of home district of Dr. Jhagdu Ram Patal is concerned, it is sufficient to state here that the question that the orders that person should not be posted in home district is by way of guidelines to be followed by the State Government. There is no such service rules that person cannot be posted in his home district. If it is felt that the officer may be embarrassed in work in his home district, it is always open to the State Government to revise or change the arrangement and to post him somewhere else.

The writ petition is dismissed.