- (1.) Ms. Nita Chaowdhury, Principal Secretary, Medical, Health and Family Welfare, Government of U.P., Civil Secretariat, Lucknow has filed an affidavit saying that the State Government has made the policies. For all practical purposes paragraphs of the affidavit are quoted below: 1. That the deponent is at present posted as Principal Secretary, Medical, Health and Family Welfare Department, Government of U.P. Lucknow, and as such she is fully conversant with the facts of the case deposed to below.
(2.) That in compliance of the order passed by the Hon'ble Allahabad High Court on 22.4.2010 in the aforesaid writ petition, the State Government has made the following policy for posting as Chief Medical Officer, Chief Medical Superintendent, Chief Medical Superintendent (Female) and District Tuberculosis Officer: 3 (a) That those doctors belonging to the U.P. Provincial Medical and Health Service who are working in Level-4 (Joint Director Grade) shall be eligible for posting as Chief Medical Officer, Chief Medical Superintendent, Chief Medical Superintendent (Female) and District Tuberculosis Officer, These posts are of equal rank, (b) That criterion for such posting shall be seniority, suitability and past service for which Annual Confidential Reports (A.C.R.) shall be the basis for consideration. (c) That those doctors who have completed 58 years of age and who have never been posted on the above mentioned posts shall not be considered. (d) That while giving effect to the posting on the abovementioned posts, it shall be ensured that the doctor being posted in the respective establishment, i.e. Office of the Chief Medical Officer, Chief Medical Superintendent, Chief Medical Superintendent (Female) and District Tuberculosis Officer is senior most in the respective establishment. (e) That Annual Confidential Reports (A.C.R.) of all Level-4 officers shall be written by Level-5 officers. (f) That the Hon'ble Chief Minister may relax the above policy in the public interest. 4. That regarding posting of Chief Medical Officers and Chief Medical Superintendent in every district of the State and their seniority position, it is submitted that in order to make sure that entries in the Personal Information Database of the doctors of UP. Provincial Medical and Health Service is absolutely errorless and up-to-date, a detailed in-depth scrutiny of the same has been initiated. Under this exercise, a division-wise schedule has been prepared and each day officers from three divisions are being called alongwith district-wise details of the postings of doctors and their updated posting proforma. 5. That it is further submitted that according to this schedule, this exercise will be over by 2.5.2011. With this exercise, the position will be clear whether there is any doctor working under a junior doctor in Chief Medical Officer, Chief Medical Superintendent, Chief Medical Superintendent (Female) and District Tuberculosis Officer establishment with certainty. 6. That it is also submitted that after the position becomes clear following the exercise as mentioned above, the Department will undertake further needful steps in accordance with the policy made by the government relating to the posting of Chief Medical Officers, Chief Medical Superintendents, Chief Medical Superintendents (Female) and District Tuberculosis Officers and, consequently, any aberration with regard to the seniority will be rectified. 2. Mr. Ravi Kant, learned Senior Counsel appearing for the State has cited a judgment in State of Uttar Pradesh and Ors. v. Jasvir Singh and Ors., 2011 4 SCC 288 for two reasons: (a) It is a matter of concern that there is a growing trend among a few Judges of the High Court to routinely and frequently require the presence, in Court, of senior officers of the Government and local and other authorities, including officers of the level of Secretaries, for perceived non-compliance with its suggestions or to seek insignificant clarifications. The power of the High Court under Article 226 is no doubt very wide. It can issue to any person or authority or Government, directions, orders, writs for enforcement of fundamental rights or for any other purpose. The High Court has the power to summon or require the personal presence of any officer, to assist the Court to render justice or arrive at a proper decision. But there are well-settled norms and procedures for exercise of such power. (b) Where the State has a definite policy or taken a specific stand and that has been clearly explained by way of affidavit, the Court should not attempt to impose a contrary view by way of suggestions or proposals for settlement. A Court can of course express its views and issue directions through its reasoned orders, subject to limitations in regard to interference in matters of policy. But it should not, and in fact, it cannot attempt to impose its views by asking an unwilling party to settle on the terms suggested by it.
(3.) We have surprised about the submission in terms of point No. (a) above because it was clear understanding between the parties in presence of the Court that the Principal Secretary, Medical, Health and Family Welfare, Government of U.P. will not be under threat of contempt but as per desire of the Court for the purposes of real assistance to the Advocate General/Additional Advocate General/ Senior Counsel representing the case of the State and for solution of the matter in the Court. Against this background, reference to the aforesaid judgment of the Supreme Court as cited by Mr. Ravi Kant is uncalled for. When the Court was displeased, he has withdrawn his submission in terms of point No. (a) above.;