- (1.) WE have heard Dr. Kamal Dhawan appearing in person. Shri R.B. Pradhan, Addl. Chief Standing Counsel appears for the State respondents.
(2.) THE petitioner is presently posted as Level-3 Medical Officer in the Government Women's Hospital, Fatehpur. By this writ petition she has prayed for directions to promote her to Level-4, on the post of Joint Director, or an equivalent post with consequential and financial benefits, in Specialist Sub Cadre (Female) (unreserved category) of the Provincial Medical and Health Services, State of U.P. She has also claimed promotional benefits equal to the post of Joint Director in Level-4 from the date the doctors immediately junior to her in the seniority list were promoted to Level-4. The petitioner was appointed in the Provincial Medical and Health Services as Medical Officer on 5.11.1979. In Dr. Chandra Prakash & Ors. v. State of U.P. & Ors. (Writ Petition No.43 of 1998), decided on 4.12.2002 the Supreme Court directed the State Government to fix the seniority of all the doctors in PMHS cadre from the date of the order of their initial appointment counting their adhoc services within six weeks. In the seniority list prepared by the State Government in pursuance to the directions issued by Supreme Court in Dr. Chandra Prakash case, the petitioner was placed at Seniority No.4261. The petitioner's services were governed by the U.P. Medical and Health Services Rules, 1994. A new set of service rules namely U.P. Medical and Health Services Rules, 2004, were notified on 11th August, 2004 creating four sub cadres; namely (i) Uttar Pradesh Medical and Health Service General Sub Cadre (Male); (ii) Uttar Pradesh Medical and Health Service General Sub Cadre (Female); (iii) U.P. Medical and Health service Specialist Sub Cadre (Male) and (iv) Uttar Pradesh Medical and Health Service Specialist Sub Cadre (Female). In the sub-cadre of Specialist (Female) the promotions were provided from the post of Specialist in Level-1 in the pay scale of Rs.8000-13500/- to Senior Specialist in Level-2 in the pay scale of Rs.10,000-15,200/-; thereafter to the post of Superintendent/ Consultant, and equivalent in Level-3 in the pay scale of Rs.12,000-16,500/-; and then to Joint Director and equivalent in Level-4 in the pay scale of Rs.14,300-18,300/-. The Rules of 2004, also provided promotions to the post of Additional Director and equivalent in Level-5 in the pay scale of Rs.16,400-20,500/- and thereafter on the post of Director. The department is headed by the Director General.
(3.) IN Rule 5 of the Rules of 1994 the promotions were provided on completing 4 years, 10 years and 16 years of service. Before the implementation of the Rules of 2004, options were asked from all the Medical Officers under Rule 5 (2) for allocation of cadres with the condition that the option of the cadre will not be permitted to be changed, and that the sub cadre of Specialist, can be opted only by those Medical Officers, who have Post Graduate degrees in Medical Science. It is submitted that the petitioner had opted for the sub-cadre on Specialist as she is a Post Graduate in Medical Science. By Government Order dated 15.4.2005 all the service benefits were to be provided in accordance with the seniority in the respective sub cadres, with reference to the seniority as on 5.6.2003. By a Government Order dated 20.5.2005 the State Government notified that in order to give consequential benefits on the basis of seniority in pursuance to the order of the Supreme Court dated 4.12.202, in Dr. Chandra Prakash's case, notional promotions were approved by the Governor in respect of 2047 posts in general category in List 1 and 2, and 518 serving Medical Officers in the reserved category (SC), on the basis of next below rule in Column 5 and 6. This arrangement was not to be applicable to the posts of Joint Director or above namely on the post of Director and Director General as these posts are to be filled on the basis of selection in which merit is the only criteria.;