- (1.) G. P. Mathur, J. This writ petition under Article 226 of the Constitution has been filed for quashing the orders dated 15- 5-1998 passed by Secretary, Medical and Health Services, U. P. Government, and the order dated 21-7- 1998 passed by the Chief Medical Officer, Allahabad. A further prayer has been made that a writ of mandamus be issued directing the respondents to take the petitioner back in service as a medical officer.
(2.) THE selection in Provincial Medical Service is made through U. P. Public Service Commission in accordance with the PMS Service Rules. Since regular appointments had not been made for a long time and there were many vacancies on the post of medical officers, the U. P. Government issued a G. O. dated 16-8-1985 which provided for appointment of medical officers on short-term basis through the Chief Medical Officers of the districts. THE appointment so made were to last till regularly selected candidates joined on the posts. Another GO was issued on 28-8-1986 whereby lady doctors holding BAMS/bums degree could be appointed as part-time lady medical officers. THE petitioner claims that she holds a degree of BUMS (Bachelor of Unani Medicine and Surgery ). In response to her application dated 1-1-1987, the petitioner claims that she was selected by a committee constituted at the district level by the Chief Medical Officer, Allahabad, and, thereafter, she was issued an appointment order on 7-2-1987 appointing her as a part-time lady medical officer. She was required to work for six days a week and was to be paid a honorarium of Rs. 1500 per month. Some additional allowance was paid for doing night duty. Paragraph 5 of the appointment order specifically mentions that she had not been appointed in any Government service and she would not be treated as a Government servant. Paragraph 6 provides that her appointment was for a period of one year only. THE appointment order was issued by the CMO, Allahabad and a copy of the same has been filed as Annexure-2 to the writ petition. THE petitioner claims that her appointment was extended from time to time and the last appointment order was issued on 2-4-1990 by which she was appointed lady medical officer till 31-3- 1991 and she was to be paid remuneration at the rate of Rs. 60 per day. THE appointment order further mentions that her services could be terminated at any time. A copy of this order has been filed as Annexure-6 to the writ petition. In response to the GO dated 10-10-1990 the CMO, Allahabad passed an order dated 17-11-1990 terminating her services. THE petitioner then filed C. M. Writ Petition No. 30572 of 1990 challenging her termination order, in which notice was issued on 21-11-1990 and the following interim order was passed: "until further orders or the expiry of 31st March, 1991, whichever is earlier, the operation of the order dated 17-11-1990 (Annexure-II to the writ petition) will remain stayed. " It is the admitted case of the parties that the stay order dated 21-11-1990 was not extended any further and in terms thereof it came to an end on 31-3-1991. The writ petition was, thereafter, finally heard and was decided on 16-5-1997 in terms of the judgment and order dated 1-5-1997 given in C. M. Writ Petition No. 44666 of 1993 (Dr. Rekha Rani v. State of U. P. ). In accordance with the decision in the aforesaid writ petition, the petitioner made a representation to the State Government for regularising her services, which was rejected by the order dated 21-7-1998. The petitioner seeks quashing of this order and further prays that a direction be issued to take her back in service as medical officer. Sri B. D. Madhyan, learned Counsel for the petitioner, has submitted that the State Government had issued an order on 15-5-1998 for regularisation of services of all such part-time doctors who had been appointed upto 17-7-1991 and had been working continuously till that day and also possessed the prescribed qualification. It is urged that some part-time doctors who were able to get stay orders from the High Court and continued to work on the strength of the said stay order till 15-5-1998 got the benefit of the Government Order and, thereby, their services were regularised. It is submitted that even though the stay order passed in favour of the petitioner on 21-11-1990 was not extended and her services came to an end on 31-3-1991, yet she should not be treated in a different manner and should be given the benefit of the Government Order and should be taken back in service.
(3.) IN the counter-affidavit filed on behalf of the State, it is averred that the petitioner holds a degree of BUMS (Bachelor of Unani Medicine and Surgery) while in the Government hospitals persons holding MBBS degree have to be appointed. The petitioner had been given a short-term appointment on daily wage basis as there were large number of vacancies and people in the rural area were suffering great hardship on account of non-availability of doctors. However, after appointment of Dr. Alpana Verma, services of the petitioners were terminated on 17-11-1990 as per the terms and conditions of her short- term appointment, which clearly provide that her appointment would come to an end in the event a regularly selected candidate joined on the post. It is further averred that the benefit of GO dated 15-5- 1998 has been given to only those doctors who had been appointed upto 17-7-1991 and had been working continuously on the date of issuance of the GO, i. e. on 15-5-1998. Since the services of the petitioner had come to an end after joining of Dr. Alpana Verma, she could not be given the benefit of the Government Order. There is no dispute that the last appointment order issued in favour of the petitioner on 2-4-1990 clearly provided that she was being appointed as lady medical officer till 31-3-1991 on a purely temporary basis and her appointment could be terminated at any time without giving any notice. This appointment order had not been issued by the State Government but had been issued by the CMO, Allahabad. The petitioner had not been selected by the U. P. Public Service Commission in accordance with the Rules but had been selected by a committee constituted by the CMO at the district level. The services of the petitioner were, in fact, terminated by the CMO, Allahabad by the order dated 17-11- 1990. The petitioner challenged the said order by filing C. M. Writ Petition No. 30572 of 1990 in which an interim order was passed on 21-11-1990 staying the operation of the order dated 17-11-1990 till further orders of this Court or till 31st March,1991, whichever was earlier. The maximum period for which the petitioner could work in terms of the aforesaid interim order was 31-3-1991. Neither there is any material on record nor it is the case of the petitioner that the aforesaid stay order passed in her favour was extended by the Court. In these circumstances, the petitioner could not have worked as lady medical officer after 31-3-1991. In fact, the stand of the State Government is that her services were terminated on 17-11-1990 but she was paid wages upto 31-3-1991. There is no averment in the writ petition that the petitioner actually performed duty after 17-11-1990. The GO dated 15-5-1998 clearly provides that the benefit thereof would be available to only those part-time medical officers who had been appointed prior to 17-7-1991 and had been continuously working till the date of issuance of the GO, i. e. 15-5-1998. The petitioner was not in service and had not been performing any duty after 17-11- 1990 or at best 31-3-1991. In these circumstances, she is not entitled to the benefit of the Government Order. We are, therefore, of the opinion that the State Government was perfectly right in rejecting the representation made by the petitioner and she has no legal right to claim that she may be taken back in service.;