B.K.MEHTA - (1.) The Petitioner who at all the relevant times of this petition was working as an Administrative Officer Class II in Directorate of Medical Services (ESI) at the ESI Hospital Baroda has by this application under Article 226 of the Constitution prayed for appropriate writs orders and direction enjoining respondent No. 1 to consider him for promotion to the post of Administrative Officer Class II (Senior Scale) in the Directorate of Health Services (Medical) and restraining the said respondent from according promotion to the said post to his junior inter ex on the ground that according to the Government resolutions in that behalf made from the to time the State Government was under an obligation to accord promotion on the basis of the common seniority list of Administrative Officers working in different directorates.
(2.) The brief narration of the facts which compelled the petitioner to move this Court is as under. In the Department of Health and Family Welfare in the State Government originally there were two directorates namely Director of Health Services (Health) and Director of Health Services (Medical). By the Government resolution in the Health and Industries Department of 5/12/1962 it was inter alia directed that all the posts of Personal Assistants to the Directors Deputy Directors and Assistant Directors of Health and Medical Services be brought into one cadre and the incumbents of the posts in the cadre were liable for inter directorate transfer. It appears that the third directorate namely Directorate of Medical Services (ESI) was established in pursuance of the Government resolution in the Panchayat and Health Department dated 3/09/1965 under the charge of Directorate of Medical Services (ESI). The said resolution inter alia directed that the persons who have been transferred from Medical and Ayurvedic Departments to the Director of Medical Services (ESI) should be allowed to continue to work in this third directorate. It appears further that the State Government decided to create a fourth directorate known as Directorate of Health Services (Medical Education and Research) and a resolution of 20/05/1975 was issued in that behalf. The State Government in the Health and Family Planning Department issued a resolution of 8/12/1976 inCorporating the decision arrived at in a joint meeting of all the directors in the matter of the problems inter alia relating to sharing of staff. In paragraph 6 of the said resolution of 8/12/1976 it was stated as under: " (6) Other Personnel The existing personnel working in the Director of Medical Education and Research and the Director of Health Services (Medical) shall stand allocated to the respective Directorate; and in future they will seek promotions in the respective Directorate." At this stage it is necessary to refer to the two decisions taken by the Government in 1965 and 1973 which were recorded in the letter of Deputy Secretary Panchayat and Health Department Ahmedabad addressed to all Deans Superintendents and Civil Surgeons of the Government hospitals in the State and the Government resolution of 19/06/1973 issued in Panchayat and Health Department. In the aforesaid letter of the Dy. Secretary the attention of Deals etc. was invited to the earlier letter of the Medical Department dated 3-4-1964 in connection with the common cadre of Personal Assistants in Medical and Public Health Department. It has been further observed in the said letter which is dated 24-11-1965 that the Government orders regarding creation of common cadre have been issued under Government resolution in Health and Industries Department on 5-12-1962 and to prepare common seniority list of Superintendents working in both the departments within a months time and that the appointments to the posts of Personal Assistants which are now redesignated as Administrative Officers to Deans and Civil Surgeons should be made from the said seniority list. The Government resolution of 5/12/1962 directed that all the posts of Personal Assistants specified therein which were in the time scale of Rs. 220-650 as well Rs. 180-400 should be brought into one cadre and that the incumbents of these posts should be liable for intertransfer. Similarly a Government resolution of June 1973 in effect provided that with a view to achieve more independence in selection of suitable persons for ministerial posts by the Director of Medical Services (ESI) there should be firstly separate seniority lists for all categories of ministrial posts upto the posts of Superintendents under the ESI Scheme; secondly the persons transferred to the ESI Directorate from the Director of Medical (Medical) should have an option either to continue in the ESI Scheme or to go back to their parent department namely Medical Department and which option should be exercised within a period of four months from the date of the resolution and thirdly the Superintendents working under the ESI scheme should have a common seniority along with the Superintendents working in the Medical and Public Health Department for purposes of promotion to the next higher posts of Personal Assistant available in different Directorates. Inspite of the aforesaid directions by the various resolutions set out above the concerned authorities in the State Government failed to prepare a common seniority list of Administrative Officers working in different directorates. It should be noted that the petitioner joined the Medical Department in the erstwhile State of Bombay on 4/10/1947 He was promoted as Administrative Officer Class II (Junior Scale) which carried a time scale of Rs. 650 which was revised pursuant to Desai Pay Commission. It further appears that the Petitioner was prior to his posting at the ESI Hospital at Ahmedabad was working as all administrative Officer attached to Civil Surgeon at Limdi Hospital in Saurashtra He had by his letter of 2/07/1974 addressed to the Director of Health Services (Medical) reminded the authority about the assurance given by the Department that he would be considered for transfer to Ahmedabad whenever a suitable vacancy arises and having regard to the difficulty of maintaining two establishments on account of ever rising costs of living he requested for his transfer to the post of Administrative Officer ESI Hospital Bapunagar Ahmedabad which was going to fall vacant in the month of August 1974 as a result of superannuation of the then incumbent Shri. K. I. Jani. The petitioner therefore requested the Director to consider his case sympathetically for transfer. The petitioner was accordingly transferred in August 1974 as Administrative Officer at the ESI Hospital Bapunagar Ahmedabad It should be recalled that the policy of the Government as recorded in the various resolutions set out above was to treat the cadre of Administrative Officers in different directorates as common cadre and the incumbents of the posts were liable to inter directorate transfer. The cause which has given rise to this petition is that the State Government has by its resolution of 18/11/1980 made in the Health and Family Welfare Department directed the framing of separate seniority lists for the posts upto the level of Personal Assistants in the various directorates of Health Department with the result that the petitioners right for promotion to the post of Administrative Officer Class II (Senior Scale) and further promotion to the post of Administrative Officer Class I was likely to be affected prejudicially and the Petitioner therefore made a representation pointing out the anomolies as position arising in his case and invited the attention of the Government that he should be considered for promotion in Medical Section and no injustice should be done to him as he was sent to the Directorate of Health Services (ESI) when the avowed policy was to have a common seniority list of Administrative Officers for purposes of further promotion. The first representation was made by the petitioner by his memorandum of 10/02/1981 and the second on 21/03/1981 The petitioner also called on the Secretary in the Health Department on 18/03/1981 when he was assured that no injustice would be done to him in the matter of promotion. The petitioner having learnt that persons junior to him in the cadre of Administrative Officers Class II (Jr. Scale) like respondent No. 4 as well one Shri R. C. Pandya were likely to be promoted to the Senior Scale who were working in the Directorate of Health Services (Medical) ignoring the case of the petitioner he moved this Court for appropriate writs orders and directions as stated above.
(3.) Rule was issued on this application and was directed to be alongwith Special Civil Application No. 3401 of 1980 and the adinterim relief directing that all promotions to Administrative Officers Class II (Sr. Scale) shall be made subject to the result of the petition.;