# Dr. Manish and others v. State of U.P. Through Secretary,Medical Education & Training

- **Citation:** (2012) 1 ILRA 170
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-02-22
- **Bench:** Uma Nath Singh, Ritu Raj Awasthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-manish-and-others-v-state-of-u-p-through-secretary-medical-education-training-42085
- **Pages:** 4

## Headnote

Constitution of India, Article 226-payment
of stipend-petitioner perusing M.D.M.S
course-on basis of first counseling-on
merit of 45%-due to non availability of
reserve category transferred to general
category-in furtherance of final judgment
third counseling-petitioner change their
choice undertaking about no claim of
stipend-held-without adjusting the earlier
amount-entitled for full stipend during
period-perusing P.G. course-undertaking
will
not
come
in
way.
1 All] Dr. Manish and others V. State of U.P. through Secretary, Medical Education & Trraining

171
Held: Para 5

We are also informed that the said
judgment has been implemented, and
thus, the petitioners would also be
entitled
to
get
the
same
benefits
irrespective of undertakings, if any,
obtained from them that they would not
claim payment of stipends during the
pursuance
of
present
P.G.
Courses
allotted in subsequent counsellings in
order of merit. It appears that the
undertakings have been given under
some compulsion which otherwise ought
not to have been asked for.

## Text

170 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

19. Now, the present state of appair
is that admittedly petitioner has been
appointed on a Class IV post by order
dated 22.4.1991 and the respondents have
no objection in keeping the petitioner as a
Class IV employee in the pay scale
applicable to non regularized work charge
Class IV employee, pursuant to the order
dated 22.4.1991.

20. Sri A.P. Singh, learned counsel
appearing for the respondents submit that
petitioner did not submit his joining
pursuant to the office order dated
22.4.1991 but a fact respondents could not
controvert that petitioner is continuously
functioning
with
the
respondents
thereafter i.e. pursuant to interim order of
this Court, performing duties meant for a
Class III employee.

21. In the peculiar facts and
circumstances of this case, in my view,
ends of justice would meet and to this Dr.
L.P. Mishra, learned counsel for the
petitioner and Sri A.P.Singh learned
counsel for the respondents also agree that
petitioner shall be treated to have
continued to work as a Class IV employee
pursuant to office order dated 22.4.1991
with effect from the date of said order and
shall be entitled for all consequential
benefits
accordingly.
The
work
discharged by the petitioner vis a vis
Class III post, if any, shall be treated as
has been performed pursuant to the
appointment letter dated 22.4.1991. It is
also made clear that in case and as a
matter of fact if salary, already paid to the
petitioner during the pendency of this writ
petition is found in excess to what
emoluments he would otherwise been
entitled pursuant to the order dated
22.4.1991, such excess amount shall not
be recovered from him.

22. At the pain of repetition it is
stated that pursuant to the aforesaid
directions, petitioner shall be entitled for
the benefits flowing from the order dated
22.4.1991 as applicable to other Class IV
employees working in work charge
establishment.

23. The writ petition is disposed of
with the aforesaid directions, observations
and discussion.

24. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.02.2012

BEFORE
THE HON'BLE UMA NATH SINGH,J.
THE HON'BLE RITU RAJ AWASTHI,J.

Misc. Bench No. - 3277 of 2001

Dr. Manish and others ...Petitioners
Versus
State of U.P. Through Secretary,Medical
Education & Training
 ...Respondents

Counsel foe the Petitioner:
Sri A.R. Masoodi

Counsel for the Respondents:
C.S.C.
Sri Sandeep Dixit
Sri Umesh Chandra

Constitution of India, Article 226-payment
of stipend-petitioner perusing M.D.M.S
course-on basis of first counseling-on
merit of 45%-due to non availability of
reserve category transferred to general
category-in furtherance of final judgment
third counseling-petitioner change their
choice undertaking about no claim of
stipend-held-without adjusting the earlier
amount-entitled for full stipend during
period-perusing P.G. course-undertaking
will
not
come
in
way.
1 All] Dr. Manish and others V. State of U.P. through Secretary, Medical Education & Trraining

171
Held: Para 5

We are also informed that the said
judgment has been implemented, and
thus, the petitioners would also be
entitled
to
get
the
same
benefits
irrespective of undertakings, if any,
obtained from them that they would not
claim payment of stipends during the
pursuance
of
present
P.G.
Courses
allotted in subsequent counsellings in
order of merit. It appears that the
undertakings have been given under
some compulsion which otherwise ought
not to have been asked for.

(Delivered by Hon'ble Uma Nath Singh,J.)

Order (Oral)

1. We have heard learned counsel
for parties and perused the pleadings of
writ petition.

2. It appears that petitionersDoctors were declared successful in Post
Graduate Medical Entrance Examination,
1998. At that time, the minimum
qualifying mark for general category
candidates was 45% and for reserved
category, it was not specified. However,
due to non availability of candidates
belonging to reserved category, their
vacancies stood surrendered to general
category and were thus filled by general
category candidates.

3. Post Graduate Medical Entrance
Examination, 1998, was conducted by
the then King George Medical College,
Lucknow
(now
Chhatrapati
Shahuji
Maharaj Medical University) and as per
brochure brought out, the minimum
qualifying mark was set out as 45%. First
counselling of successful candidates was
held on 15, 16 and 17.04.1998 and
criterion of 45% marks for general
category candidates remained intact.
However, in the first counselling, it was
made
35%
for
reserved
category
candidates.
On
the
basis
of
first
counselling, the petitioners were allotted
various P.G. Courses. However, these
admissions were given provisionally,
being subject to the decision in pending
litigation, if any.

4. It also appears that the first
counselling itself was conducted under
an interim order passed by this Court in
Writ Petition No. 868 (MS) of 1998. The
Court also clarified that candidates of
reserved category who had obtained less
than 35% marks would not be permitted
to appear in the counselling, and thus, if
already permitted to participate in
counselling, were not to be given
admission. The courses started in the
first week of May, 1998 for general
category seats. But during the pendency
of writ petition, the U.P. Government
came with Ordinance No. 15 of 1998
which later became the Act No. 14 of
1997 and made applicable to U.P. Post
Graduate Medical Entrance Examination,
1998 also. Subsequently, U.P. Ordinance
No. 15 of 1998 was also promulgated by
another Act, namely, the Act no. 9 of
1998 whereby the earlier Act no. 14 of
1997 was made applicable also to Post
Graduate Medical Entrance Examination,
1999 and the minimum qualifying mark
prescribed for reserved category was
reduced to 20%. Thereafter, the second
counselling started with 45% mark for
general category and 20% mark for
reserved category. That arrangement
under the Act was however made
provisional, subject to the outcome of
writ petition. Later, a third counselling
was also conducted on 23.08.1999 under
an interim order of this Court, passed in
172 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

a bunch of writ petitions, wherein the
Court reiterated the criteria determined
by the Medical Council of India that the
minimum qualifying mark for general
category candidates would be 50% and
for reserved category candidates, 40%. It
was also clarified that the students who
were pursuing other courses would also
be made entitled to claim better option
on the basis of their merit and, thus,
would be entitled to participate in the
third counselling. Finally, the bunch of
writ petitions vide a judgment dated
30.11.1999 in the lead Writ Petition No.
3801(MB) of 1998, was disposed of, and
the Court reiterated the criteria as laid
down by the Medical Council of India
which were to be adopted in the third
counselling. In the event of seats
remaining unfilled, the criteria of 45%
minimum qualifying mark for general
category candidates and 35% mark for
reserved category candidates had to be
adopted. The bar imposed upon the
candidates admitted earlier, was lifted
because of the faulty implementation of
reservation policy. Besides, the residual
seats were also permitted to be filled on
the basis of subsequent counselling and
thus, the candidates were again permitted
to participate in the counselling in the
order of their merit. As per final
judgment, the petitioners were thus
allotted fresh courses which were to
continue for a period of three years so far
as the degree courses were concerned,
and two years in the case of diploma
courses. It appears that petitioner nos. 1
to 6 were admitted to degree courses and
petitioner no.7 to diploma course. The
students pursuing post graduate courses
and also working as Junior Residents
were held entitled to receive stipend for
the entire period of residency. There was
also a restriction on private practice like
the one applicable to the scheme of State
Government. However, that stipend,
which the petitioners were made entitled
to get, was stopped with effect from
May, 2001, on the ground that the
payments made earlier during pursuing
of other courses were to be adjusted by
deduction during the continuance of
present courses, which the petitioners
were pursuing. In this background, Shri
A. R. Masoodi, learned counsel for
petitioners, submitted that the petitioners
were illegitimately denied the stipend,
which, later, in the case of similarly
situated other candidates, was paid in
terms of a Division Bench Judgment of
this Court dated 08.04.1997 passed in
Writ Petition No. 4 (SB) of 1997 and a
bunch of similar other writ petitions. The
operative
portion
of
judgment,
on
reproduction, would read as:

"In view of the discussions held
above, all the above noted writ petitions
are allowed and the opposite parties are
directed to pay the stipend to the
petitioners as Junior Residents during
the period of three years of course of
study of M.D.M.S. reckoning it from the
date they have been allotted the correct
subjects of courses of study without
adjusting the period of course they had
undergone in different subjects wrongly
allocated due to wrong implementation
of reservation policy. So far petitioners
in writ petition no. 84 of 1997 (SB), writ
petition no. 202 of 1997 (SB) and writ
petition no. 132 (SB) of 1997 are
concerned whose course of study has
come to an end and examinations have
been held. If necessary, they would be
allowed to complete the period of three
years as Junior Resident but would not
be entitled for any stipend if the courses
are over and the examinations were held.
1 All] M/S Kesarwani Zarda Bhandar V. Subhash Chandra Kesarwani

173
It is further provided that the opposite
parties shall clear off the arrears of
amount of stipend which may not have
been paid to the petitioners or may have
been stopped being paid during the
currency of the Post Graduate Courses,
within a period of two months from
today. Writ Petition No. 326 (SB) of 1997
(Dr. Manoj Rajani and Another) and writ
petition no. 329 (SB) of 1997 (Dr.
Pramod Kumar Jain) which have been
filed fresh and have come before us
today out of which writ petition no. 326
(SB) of 1997 relates to Kanpur Medical
College and writ petition no. 329 (SB) of
1997 which relates to Agra Medical
College they also stand finally disposed
of in the same manner as indicated
above".

5. We are also informed that the
said judgment has been implemented,
and thus, the petitioners would also be
entitled
to
get
the
same
benefits
irrespective of undertakings, if any,
obtained from them that they would not
claim payment of stipends during the
pursuance of present P.G. Courses
allotted in subsequent counsellings in
order of merit. It appears that the
undertakings have been given under
some compulsion which otherwise ought
not to have been asked for.

6. There is no dispute from the
State over the assertion made by learned
counsel for petitioners.

7. Thus, we dispose of the writ
petition in terms of the aforesaid
operative portion of the judgment.
---------

APPELATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.01.2012

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J

First Appeal From Order No. - 4317 of 2011

M/S Kesarwani Zarda Bhandar

 ...Opposite Party-Appellant
Versus
Subhash Chandra Kesarwani

 ...Petitioner Respondent

Counsel for the Appelants:
Umesh Chandra Kesarwani

Counsel for the Respondents:
........................................

Code of Civil Procedure: Section 151Restoration Application order passed on
merit-in absence of appellant-refusing
appearance
of
Advocate-unless
Bar
Council
authorise
to
appear
before
Board-and
further
rejecting
recall/restoration Application-having no
power of review-held-in view of law
developed in Grindlays Bank-case when
every tribunal has power to dismiss a
case in-default-power to restore also
there-approach of Bank not only hiper
technical but shocking-order Quasheddirection to decide restoration on merit
after issuing notice to both partiesgiven.

Held: Para-3

Through the impugned order dated
5.4.2011 restoration application seeking
recall
of
order
dated
30.09.2010
dismissing the main matter in default
has been rejected on the ground that
Board has got no power to review. The
order passed by the Copy Right Board is
patently erroneous in law. It is correct
that a judgment passed on merit can not
be reviewed by any court or authority
unless
power
of
review
is
either