# Dr. Jagannath Prasad Gupta v. State of U.P. & Ors

- **Citation:** (2021) 7 ILRA 459
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-01
- **Case number:** Service Bench No. 2029 of 2015
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-jagannath-prasad-gupta-v-state-of-u-p-ors-47202
- **Pages:** 6

## Headnote

A. Service Law - Seniority of Doctors -
Notional promotion and Consequential
service benefit - Claim thereof - Supreme
Court's direction to fix the seniority of all
doctors in the P.M.H.S. Cadre from the
date
of
the
order
of
their
initial
appointment - Similarly situated person's
writ petition were allowed by the Division
Bench with the direction to grant benefit
of
notional
promotion
to
the
writ
petitioners to the post of Additional
Director and Director as and when it fell
due in accordance with rules as notified in
460 INDIAN LAW REPORTS ALLAHABAD SERIES
August, 2004 and the pay scale was to be
refixed and the arrears of salary were to
be recalculated - Held, the reasons given
in the impugned order for rejecting the
case of the petitioner for grant of notional
promotion are arbitrary. (Para 4, 13, 14,
15 and 16)
Writ Petition allowed. (E-1)

## Text

7 All. Dr. Jagannath Prasad Gupta Vs. State of U.P. & Ors.
459

51) In the opinion of this Court, the
power, which has not been expressly given
by the Statute, cannot be exercised. After
granting substantive appointment to the
petitioners, the Executive Committee again
proceeded to constitute another committee
to
re-examine
the
matter
regarding
substantive appointment to the petitioners,
therefore, two views on the same subject
are not possible to review the earlier
decision taken by the committee in its
meeting dated 30.04.2008.

52) The Executive Council as per
provisions contained under the Act enacted
with the signature of Hon'ble Governor
considered the claim of the petitioners and
thereafter approval was granted by the
Executive Council as well as by the
Academic Council. The objection from the
side of respondent - University to reexamine the act done in accordance with
Act and Statute of the University is not
permissible in the eyes of law.

53) In view of the above, the
submission advanced by learned Senior
Counsel for the petitioners appears to have
substance in the matter and the submissions
advanced by learned counsel for the
respondents
in
this
regard
are
not
acceptable in the eyes of law.

54) On over all consideration of
submissions advanced by learned counsel
for the parties, material available on record
as well as the judgments relied upon by
learned counsel for the petitioners and in
view of the fact that U.P. State Universities
Act, 1973 does not permit or vest any
power in the Executive Council to review
its earlier decision, the impugned order
passed by the respondent dated 26.08.2015
being illegal and un-reasoned cannot be
sustained and is hereby set aside.

55) The bunch of writ petitions
succeeds and is allowed.

56) The respondents are directed to
treat the petitioners to be substantively
appointed Assistant Professors / Lecturers
and to pay all consequential benefits as
admissible to their post within a period of
three months from the date of production of
a certified copy of this order.
----------
(2021)07ILR A459
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.07.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Service Bench No. 2029 of 2015

Dr. Jagannath Prasad Gupta ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Y.S. Lohit, R.S. Tomar

Counsel for the Respondents:
C.S.C.

A. Service Law - Seniority of Doctors -
Notional promotion and Consequential
service benefit - Claim thereof - Supreme
Court's direction to fix the seniority of all
doctors in the P.M.H.S. Cadre from the
date
of
the
order
of
their
initial
appointment - Similarly situated person's
writ petition were allowed by the Division
Bench with the direction to grant benefit
of
notional
promotion
to
the
writ
petitioners to the post of Additional
Director and Director as and when it fell
due in accordance with rules as notified in
460 INDIAN LAW REPORTS ALLAHABAD SERIES
August, 2004 and the pay scale was to be
refixed and the arrears of salary were to
be recalculated - Held, the reasons given
in the impugned order for rejecting the
case of the petitioner for grant of notional
promotion are arbitrary. (Para 4, 13, 14,
15 and 16)
Writ Petition allowed. (E-1)
(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. Heard learned counsel for the
petitioner and Sri Shatrughan Chaudhary,
learned Additional Chief Standing Counsel
for the State-Respondents.

2. This petition has been filed by the
petitioner challenging the order dated
05.05.2015 passed by respondent no.2 and
praying for issuance of mandamus to the
respondents to grant notional promotion to
the petitioner to the post of Additional
Director w.e.f. 21.06.1990 and to the post
of Director w.e.f.22.05.1996 respectively
alongwith consequential benefits including
arrears of salary coupled with interest at the
market rate i.e. from the respective date of
such promotion;since the persons junior to
the petitioner, namely, Dr. Sumati Sheel
Sharma has been granted such benefit in
furtherance of general directions issued by
Supreme Court as well as by this Court in
various other writ petitions.

3. It appears that petitioner was
appointed on the post of Medical Officer
In-chargeon
21.02.1969.
He
appeared
before U.P. Public Services Commission on
31.08.1970. Dr. Sumati Sheel Sharma was
appointed to the post of Medical Officer in
March,1971 and and was placed in the
Seniority List at Sl. no.768 .Petitioner was
appointed more than two years before Dr.
Sumati Sheel Sharma but was placed at
Sl.no. 1189 because of discrepancy in
fixation of seniority.Dr. Sumati Sheel
Sharma was given promotion to the post of
Joint Director, Additional Director and
Director but the petitioner who was senior
to her was deprived such benefits. The
petitioner retired from service 31.07.1998
from the post of Nagar Swasthya Adhikari,
Lucknow in Joint Director's pay scale. In
the meantime, on the recommendation of
Equivalence Committee Report, 1982 by an
order
dated
11.01.1991,
the
State
Government had taken a decision to grant
personal pay scale of 3700-5000 to those
doctors who came into Senior Grade
Officer Category on 01.01.1986 and then
completed two years continuous services in
Senior Grade Officer scale. The seniority of
the petitioner was again wrongly mentioned
in the order granting senior grade.

4. In pursuance of seniority dispute
raise in Dr. Chandra Prakash case, (Writ
Petition No. 43 of 1998), Hon'ble the
Supreme Curt delivered the judgment and
order dated 04.12.2002 directing the State
Government to fix the seniority of all
doctors in the P.M.H.S. Cadre from the
date of the order of their initial appointment
within a period of six weeks and to give all
consequential benefits including promotion
and position on the basis of such seniority.
In pursuance of the order passed by Hon'ble
Supreme Court in Dr. Chandra Prakash's
case, the State Government prepared a
seniority list according to the date of initial
appointment of the doctors in P.M.H.S.
cadre by a Government Order. On
20.02.2003, placing the petitioner at Sl.
No.535 in the seniority list but the
consequential benefits including promotion
and arrears of salary were not given to him.

5.

Petitioner
submitted
a
representation before the State Government
7 All. Dr. Jagannath Prasad Gupta Vs. State of U.P. & Ors.
461
on 16.10.2003 praying that one Dr. Sumati
Sheel Sharma, who had been wrongly
given seniority above him earlier had been
promoted on the post of Joint Director on
01.01.1986 and Additional Director on
21.06.1990
and
prayed
for
notional
promotion
and
consequential
service
benefits from the date his junior was given
the said benefit.Dr. Sumati Sheel Sharma
has been shown at Sl. No.1099 in the
corrected
seniority
list
dated
20.02.2003.She
had
been
given
all
consequential benefits showing her in the
personal pay scale of Joint Director and
Additional Director and then in the
personal pay scale of the post of Director
w.e.f. 22.05.1996.The petitioner was senior
placed at 535 in the seniority list, but he
was denied the said benefits and when the
petitioner's representation was not decided,
he filed Writ Petition No. 04(S/B) of 2004
which was disposed of by this Court by its
judgment and order dated 25.04.2005
recording the statement of learned Chief
Standing
Counsel
that
the
notional
promotion and consequential benefits etc.
would be given as per petitioner's seniority
as had already given to all similarly
situated persons within a period of three
months .

6. The petitioner filed Contempt
Petition No. 726 of 2006 when his case was
not duly considered. The said contempt
petition was disposed on 18.07.2013
recording therein the stand taken by Dr.
Devendra
Kumar
Srivastava,
Director
General, Medical Health , U.P. that
seniority can be given and also notional
promotion only upto the post of Joint
Director, the post of Additional Director
and Director and Director General being
selection posts where merit had to be
considered, no notional promotion can be
given to the petitioner as he had already
retired in 1998.The contempt court in its
order
dated
18.07.2013
directed
the
petitioner to file a fresh representation. The
petitioner filed such representation on
09.10.2013 and again on 21.04.2014 raising
his grievance before the opposite party no.2
The opposite party no.2 passed an order
dated 07.10.2014 rejecting the case of the
petitioner.

7. Learned counsel for the petitioner
says that although the representation of the
petitioner was rejected, the representations
of the similarly situated doctors for
example Dr. Virendra Singh Pachara and
others were accepted subject to decision in
S.L.P. No.29234 of 1998 (renumbered as
Civil Appeal No. 3041 of 2010 )It is a case
of the petitioner that direction of Hon'ble
Supreme Court have been complied with
by the Authorities in a pick and choose
manner . Civil Appeal no. 3042 of 2010
was filed by one of the doctor who was
granted the benefit of judgment rendered in
Dr. Candra Prakash's case has been allowed
by the Supreme Court by observing that the
High Court had wrongly failed to grant the
arrears of salary payable to the appellant
therein,and directing that the appellant be
given consequential benefit of arrears of
pay also in view of the notional promotion
granted to him within three months from
the date of order. with interest @ 6 % from
the date judgment of the court.

8. Learned counsel for the petitioner
had also drawn the attention of this Court
to averments made in para-30 of the writ
petition, which states in the form of
Table/Chart the names of Medical Officers
who had been given benefit of Selection
Grade of the post of Joint Director and
promotion upto the rank of Additional
462 INDIAN LAW REPORTS ALLAHABAD SERIES
Director/ Director/ Director General on the
basis of seniority prepared after judgment
rendered in the case of Dr. Chandra
Prakash .

9.

Learned
Standing
Counsel
appearing on behalf of State-Respondents
has pointed out the contents of para-4 from
the counter affidavit sworn by one Sri
Satya Prakash Singh Sengar, Deputy
Secretary, Medical & Health Department
Government of U.P. In paragraph-4 , in
reply to the contents of para 9 to 24 to the
writ petiotn , it has been stated that seniory
list was prepared in compliance of Hon'ble
Supreme Court's order in Dr. Chandra
Prakash case on 05.06.2003 and the
petitioner has been placed at sl. no. 535 in
the seniority list on the basis of this
seniority notional promotion was granted
on senior grade and Joint Director Grade by
orders dated 20.05.2005 and 02.02.2005.
However, there was no basis for granting
notional promotion to the post higher than
that of Joint Director i.e. Additional
Director and Director Grade as there were
selection posts and the petitioner had
retired on 31.07.1998 It has been submitted
that all the Medical Officers were granted
pay scale up to the post of Joint Director
only including the petitioner.The petitioner
was granted senior grade w.e.f. 16.03.1979
and
Joint
Director
Grande
w.e.f.
01.04.1986 i.e. from the date of promotion
of his junior. Consequential order for
revision of pension was also issued
thereafter.
The
representation
of
the
petitioner dated 16.01.2015 was disposed
of on 05.05.2015 and such order dated
05.05.2015 is valid and justified.

10. There is no denial in the counter
affidavit of the allegation made by the
petitioner that Dr. Sumati Sheel Sharma,
who was his junior and several other
doctors, whose names have been mentioned
in para-30 to the counter affidavit have not
been given the benefit of pay scale of
Additional Director/ Director/ Director
General .There is also no denial of Civil
Appwal no. 3042 of 2010 having been
allowed on 24.07.2014 directing payment
of arrears in pursuance of notional
promotion alongwith interest of 6% from
the date of judgement of Hon'ble Supreme
Coourt to the appellant therein.

11. During the course of arguments,
learned counsel for the petitioners has read
out
the
judgment
and
order
dated
25.04.2005 passed in Writ Petition no. 4 of
2004, and the order passed in Contempt
Petition no.726 of 2006 and also the
judgement and order dated 31.08.2017
passed in Writ-A no. 3334 of 2009 (Ramji
Pandey Vs. State of U.P.) filed as annexure
no.1 to the Supplementary affidavit. filed
by the petitioner on24.04.2018 as also the
judgement rendered in the case of Dr.
Gulab
Chandra
Civil
Writ
Petition
no.42421 of 2006 dated 09.11. 2016
referred in the judgment of Division Bench
of Dr. RamJi Pandey ( supra) . It has been
submitted that S.L.P. with Diary No. 33951
of 2018 was filed by the State of U.P.
against the judgment rendered in the case
of Ramji Pandey. Hon'ble the Supreme
Court
while
issuing
notice
on
the
application on 20.10.2018 has observed
that such entertaining of S.L.P. is limited to
the question of payment of arrears of
salary.

12. This Court having considered the
two jdugments passed by Division Benches
in the case of Gulab Chandra and Dr Ramji
Pandey, the arguments as raised by learned
counsel for the petitioner through video
conferencing, finds that the same reason for
rejecting the case of the petitioner have
7 All. Dr. Jagannath Prasad Gupta Vs. State of U.P. & Ors.
463
been mentioned in the impugned order
dated 05.08.2018 as have been mentioned
in the counter affidavit filed by the
respondents he impugned order also
considers the case of Dr. Sumati Sheel
Sharma and mentions that Dr. Sumati Sheel
Sharma was placed at Sl. no. 1099 of the
seniority list and 21 other doctors, who
were senior to her including those who had
retired from service or died had been given
notional promotion as Additional Director
w.e.f.
21.06.2009
and
the
notional
promotion on the post of Director in the
pay scale of 5900-6300 w.e.f. the date that
Dr. Sumati Sheel Sharma was given such
promotion. This fact mentioned in the order
dated 05.05.2015, as also the fact that
petitioner was placed at Sl. no.535 of the
seniority list has convinced the Court that
the impugned order is liable to be set
aside.The case of the petitioner has been
rejected only on the ground that Dr. Sumati
Sheel Sharma had been given promotion on
21.06.1990 and 22.05.1996 on the basis of
earlier seniority list and the petitioner was
at that time junior to Dr. Sumati Sheel
Sharma, therefore, he cannot claim the
same benefit. Additionally, a reference has
been made of pension, re-fixation having
been done by the Government Order dated
30.12.2005 and 13.06.2006 and of Writ
Petition No.2877 of 2004 (Dr. Rajendra
and others Vs. State of U.P. and others)
having been decided by High Court on
10.1`1.2005 with the observation that only
notional promotin can be given and pension
re fixation can be done alongwith other
retiral benefits but arrears of salary cannot
be given on the principle of " No Work No
Pay".

13. The reasons given in the
impugned order for rejecting the case of the
petitioner for grant of notional promotion
are arbitrary in the face of observations
made by Division Benches of this Court in
the case of Gulab Chandra and Dr. Ramji
Pandey as mentioned herein above.

14. The Division Benches of this
Court in the aforesaid two judgments
have allowed the writ petitions with the
direction to the respondents to grant
benefit of notional promotion to the writ
petitioners to the post of Additional
Director and Director as and when it fell
due in accordance with rules as notified
in August, 2004 and the pay scale was to
be refixed and the arrears of salary were
to be recalculated and to be paid within
three months from the date of passing of
the order. Consequential benefits of re-
fixation of pension, gratuity and other
post retiral benefits were also to be made
available to the writ petitioners and if
such payment was delayed beyond three
months the same was to accrue 6%
simple interest from the date of jdugment
to the date of payment.

15. Similar orders have been passed
by Hon'ble the Supreme Court in Civil
Appeal no.3041 of 2010 as have been
mentioned in para-26 to the writ petition
which has not been specifically denied by
the respondents in the counter affidavit.

16. This writ petition is allowed in the
same terms as the decision by this Court on
31.08.2017 in Writ -A N. 3334 of 2009
(Ramji Panday Vs. State of U.P.).

17. Let appropriate order be passed
by opposite party no.2 making them
subject to decision in SLP with Diary no.
33951 of 2018 ( State of U.P. Vs. RamJi
Pandey.
464 INDIAN LAW REPORTS ALLAHABAD SERIES

18. A direction is issued to the
respondents to grant notional benefits of
promotion to the petitioner as Additional
Director and Director as and when it falls
due in accordance with the Rules as
notified on 11th August, 2004 and the pay
shall be re-fixed and payment of arrears of
salary on such re-calculation shall be made
as expeditiously as possible, preferably
within three months from today. The
consequential benefits of pension, gratuity
and other retiral dues shall also be available
to the petitioner. In the event the payment
is delayed beyond three months, the same
shall carry 6% simple interest from the date
of this judgment to the date of payment.
----------
(2021)07ILR A464
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.07.2021

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.

Service Bench No. 2562 of 2016
With
Service Bench No. 7624 of 2017

Wing Commander Rajesh Kumar Nagar
 ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Dineysh Agrawaal, Anupriya Agarwal, Hari
Mohan Mathur, Rajani B Bajpai

Counsel for the Respondent:
C.S.C., Upendra Nath Mishra

A. Service Law - U.P. Government Servant
(Discipline and Appeal) Rules 1999 - Rule
3
&
7
-
Aircraft
(Investigation
of
Accidents and Incidents) Rule, 2012 -
Rules 3(1) & 3 (2) - Departmental enquiry
- Petitioner was on deputation from
Indian Air Force - Termination by the
borrowing department on the allegation of
misconduct or negligence during service -
Validity - Held, Services of an employee
on deputation cannot be terminated by
the borrowing department - In case of
any negligence or misconduct, he can only
be repatriated to his parent department
along with the report about his conduct -
Principle laid down by Apex Court in Kunal
Nanda's case followed. (Para 12, 34 and
42)
B. Service Law - Termination - Charge
sheet at a belated stage - No explanation
of inordinate delay - Effect - Delayed
initiation of proceedings is bound to give
room for allegations of bias, mala-fides
and misuse of power - Such delay is likely
to cause prejudice to the delinquent
officer in defending himself - Held, the
delay and laches on the part of the
employer
in
conducting
departmental
enquiry
without
any
satisfactory
explanation for the inordinate delay are
sufficient to vitiate the entire disciplinary
proceeding. (Para 12, 34 and 47)
C. Service Law - Departmental enquiry -
Principle of Natural Justice -Application
thereof - Frequent changes of Inquiry
Officer - No supply of relevant documents
for the preparation of the reply - No
proper opportunity to submit the reply of
the show cause notice - No case of
ignorance of any warning about the wake
turbulence given by Air Traffic Controller -
Held, the enquiry is vitiated and is not
sustainable in the eyes of law; further
held, not only the proceedings are bad on
account of placing of reliance upon the
report
of
preliminary
investigating
authority
but
it
also
appears
that
authorities had already made up their
mind to dismiss the petitioner from
service. (Para 52, 60 and 61)
Writ Petition allowed. (E-1)
Cases relied on :-
1. S.B.I. & ors. Vs Narendra Kumar Pandey;
(2013) 2 SCC 740