Provincial Medical Service Officers Retired Welfare Association v. State Of Uttar Pradesh

1. Heard Shri Rajendra Kumar Saini, petitioner, who appears in person and the learned Standing Counsel.

2. Provincial Medical Service Officers Retired Welfare Association (PMS Officers), U.P., Lucknow through its General Secretary, Dr. Rajendra Kumar Saini has filed the instant writ petition inter-alia for a direction to the State authorities to follow Dynamic Assured Career Progression (in short, DACP) in respect of the medical officers working in Uttar Pradesh as is being followed and given in other States.

3. According to the petitioner, DACP scheme is followed by the Central Government, Delhi, Rajasthan and Punjab, etc., but the said scheme is not being followed by the State of Uttar Pradesh, causing serious prejudice and colossal loss to the medical officers working in the State of Uttar Pradesh.

4. According to the petitioner, in other departments of the State Government, like Public Works Department, Irrigation, etc., there are two source of recruitment; one is by direct recruitment and other by promotion, whereas in the case of medical officers, the recruitment is only through the Commission. Therefore, the medical officers have less promotion avenues and service benefits in comparison to other Government Officers working in other departments. The Association, by various representation brought to the notice of the State Government and other authorities the anomalies, which are being faced by the medical officers working in the State. The doctors working in Government Sector in other States of the country are getting benefits under various heads, whereas such benefits/allowances are not available to the doctors working in the State of Uttar Pradesh though they are discharging similar duties and functions.

5. Initially, the writ petition was filed by the Association through is General Secretary, Dr. Rajendra Kumar Saini, who is conducting the case on behalf of the Association. Later on, the petitioner amended the writ petition and impleaded himself as petitioner No.2 in the writ petition. Along with the amendment application, the petitioner brought on record the list containing the names of office bearers of the Association and the bye-laws of the PMS Welfare Association.

6. The writ petition has seriously been contested by the respondents and a preliminary objection was raised regarding maintainability of the writ petition at the instance of the association and that too which is not recognized by the Government. It has been contended that the name of association gives an impression that it is an association formed for the welfare of retired Medical Officers of the State but the working Medical officers are also said to be members of the said Association. According to him, it appears that with some oblique motive, a parallel association has been formed, which has yet not been recognized by the State Government.

7. According to the learned Standing Counsel, Provincial Medical Services Officers Retired Welfare Association-petitioner is a society registered under the Societies Registration Act by the Registrar, Firms, Societies and Chits, but in accordance with the government order issued by the Personnel Department, the P.M.S. Officers, Retired Welfare Association is not an organization/ society recognized by the government, hence, it is not necessary to consider any application moved by any such unrecognized society/ organization by the government. As a matter of fact, Pradeshik Chikitsa Sewa Sangh is an authorized and recognized Sangh, which submits various demand letters regarding problems of the Medical Officers of the State Medical Service Cadre, which are entertained and considered by the department from time to time.

8. As regard to the assertion of the petitioner of extending service benefits and career advancement, it has been contended that after recommendation of Rizvi Committee, various benefits have been given to the Medical Officers working in the State and the assertion of the petitioner that no positive steps have been taken for the betterment of the facilities, is wholly misconceived.

9. At the outset, we would like to mention that petitioners Association has not filed any resolution of its Executives or of the Office Bearers, authorizing the General Secretary, Dr. Rajendra Kumar Saini to file the instant writ petition. Therefore, this court directed the petitioner to produce the Minutes Book. On 23.10.2017, the Minutes Book of the Association containing the resolution was produced. A perusal of the Minutes book shows that it has been maintained in a very cursory and haphazard manner. There is an agenda at item no.8 to the effect that in case the State Government fails to take action, the writ petition be filed in the High Court but there is no resolution. It is also not clear as to who has presided the meeting and how many members were present. Further, there are cuttings and infact there is no resolution with regard to authorization of Dr Saini for filling the instant writ petition. Therefore, in absence of such authority, such type of writ petition cannot be preferred by the petitioner-Union, irrespective of the fact, whether it is registered or not, because if the authority is given to the petitioner-Association by its Members, then it will create estoppel on their part to file another writ petition for the very same relief, if this writ petition, preferred by the present petitioner-Association, is dismissed. In other words, no authority has been given by the members of the Association and there is no document to this effect having been annexed alongwith memo of the writ petition.

10. A Full Bench of this Court in Civil Misc. Writ Petition No.13367 of 1981, Umesh Chand Vinod Kumar versus Krishi Utpadan Mandi Samiti and others has clearly held that the writ petition filed by an Association of persons registered or unregistered will be maintainable only if (i) its members are individually unable to approach Court by reason of paucity or disability, etc. (ii) the writ petition involves question of public injury leading to Public Interest Litigation and the Association has a special interest in the subject matter. (iii) where the Rules or Regulations of the Association especially authorize it to take legal proceedings on behalf of its Members; so that any order passed by the Court in such proceedings will be binding on the members.

11. In view of the aforesaid facts and the proposition of law laid down in Umesh Chandra Vinod Kumars case it can safely be held that the writ petition at the instance of an association is not maintainable where the association itself is not affected by any order. In other words, the members of such association may be affected by an order and may have common grievance, but for the purpose of enforcing the rights of the members, writ petition at the instance of such association is not maintainable. Therefore, the petitioner-Association has no locus standi to file this writ petition.

12. However, we have examined the material on record, which reveals that State Government vide order dated 26.02.2015 has introduced the scheme of Special Financial Enhancement of the Medical Officers working in Provincial Medical Service Cadres in the State of Uttar Pradesh. Keeping in view the comprehensive and special nature of work of the Medical Officers under the Provincial Medical Service Cadre, after due consideration with the Vetan Samiti, the benefit of Special Financial Enhancement has been granted to the Medical officers of the Provincial Medical Service Cadre vide Government Order dated 26.02.2015, by means of which, directions have been issued to allow financial enhancement, i.e., ACP to the Medical Officers under the Provincial Medical Service Cadre, at the completion of satisfactory service of 4 years, 11 years, 17 years and 24 years.

13. In the counter affidavit, it has also been stated that prior to the State Medical and Health Service Cadre, the merger of the fixed sub-cadre and general sub cadre/ special sub-cadre, was done in the year 2011. It has been clarified that in accordance with the service rules of the said cadre, appointment by direct recruitment through Public Service Commission is only done on the post of Medical Officer for which the minimum qualification is MBBS. As such it is not proper to claim parity on the basis of pay scale with the employees working in the other department as their mode and source of recruitment is different. The benefit of the Special Financial Enhancement available to the Medical Officers is as follows :

Sl. No.

Service Period from the date of regular appointment in the first level of post of P.M.H.S. Cadre

Pay band and Grade Pay admissible under Personal way under the special arrangement of A.C.P.

1.

Total 04 years of regular continuous satisfactory service

Pay Band-3 (Rs. 15600-39100) and Grade Pay-Rs.6600/-

2.

Total 11 years of regular continuous satisfactory service

Pay Band-3 (Rs. 15600-39100) and Grade Pay-Rs.7600/-

3.

Total 17 years of regular continuous satisfactory service

Pay Band-4 (Rs. 37400-67000) and Grade Pay-Rs.8700/-

4.

Total 24 years of regular continuous satisfactory service

Pay Band-4 (Rs. 37400-67000) and Grade Pay-Rs.8900/-

14. In accordance with the Service Rules of the Medical Officers of the State Medical Services Cadre, ample opportunity of promotion on higher posts is available. Thus, it is apparent that various remedial measures have been taken by the State Government for improving the health system and facilities to the Medical Officers working in the State.

15. As regard the assertion of the petitioner that benefit of Dynamic Assured Career Progression (DACP) is not being extended to the State Medical Officers whereas same is available in other States, we would also like to add that judicial review of administrative actions is permissible on the ground of illegality or irrationality or procedural impropriety. But it is also well settled that administrative decisions involving policy considerations have been put on a different pedestal. Though they are not totally immune from judicial review, yet certain grounds, which are available in the case of administrative decisions not involving policy considerations, are not open for challenging the policy decisions. By and large the courts observe restraint in deciding the validity of issues involving policy. Since, Courts do not sit as an appellate authority over the policy considerations, it cannot examine the correctness, suitability and appropriateness of the policies. The executive has the authority to formulate a policy and the courts can interfere with it only if it violates the fundamental rights enshrined in the Constitution or is opposed to any provision of the Constitution or law.

16. Introduction of Assured Career Progression Scheme and not following Dynamic Assured Career Progression is a policy decision taken by the State. A court cannot interfere with a policy either on the ground that it is erroneous or that a better and fairer alternative was available. The consistent view taken by the Courts has been that the Courts would not interfere in the policy making domain of the executive unless the policy was in violation of the Constitution, smacked of arbitrariness, favoritism and a total disregard of the mandate of law.

17. After the decision in Balco Employees Union vs. Union of India and others, (2002) 2 SCC 333 [LQ/SC/2001/2865] , it is well established that the Court cannot compel the State Government to adopt a particular policy or to drop it. It is neither within the domain of the Courts nor the scope of the judicial review to embark upon an inquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Therefore, the judicial inquiry should be confined to whether the government decision was against any statutory provision or violative of the fundamental rights of citizens.

18. As averred above, the State Government, in its wisdom, vide order dated 26.02.2015 has introduced the scheme of Special Financial Enhancement of the Medical Officers working in Provincial Medical Service Cadres in the State of Uttar Pradesh and has also enhanced the age of the Medical officers. Therefore, it is not open for the Court to compel the State Government to introduce Dynamic Assured Career Progression scheme instead of introducing special financial enhancement etcetra.

19. In view of the aforesaid detailed discussion, the writ petition is misconceived and none of the grounds as urged by the petitioner is tenable in the eyes of law. The writ petition is accordingly dismissed. Parties to bear their own costs.

20. Bench Secretary of the Court is directed to return the Minutes Book to Sri R.K.Saini, who has conducted the case.