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Synopsis

The Allahabad High Court, Lucknow Bench today ruled in favor of a dental surgeon, allowing her plea against the denial of continuation in her contractual position under the UP Health System Strengthening Project.

The doctor, employed at a hospital in Gautambuddh Nagar, was asked by the Chief Medical Superintendent (CMS) not to report for duty from June 3, 2022, without explanation. Subsequently, her position was listed as vacant, and CMS commenced recruitment for the same role.

The woman approached the high court by filing a writ petition and argued that even though her appointment was contractual, she was entitled to continue based on her performance appraisal so long as the Scheme subsisted. 

A single judge bench of the high court dismissed her petition stating that it was not maintainable for lack of territorial jurisdiction. Moreover, the single judge bench expressed an opinion against the petitioner regarding the merits of the case as well.

In the special appeal against the single judge bench order, the division bench of Justices Rajay Roy and Om Prakash Shukla held that the part of cause of action was before the writ court at Lucknow.

The bench pointed out that on May 5, 2022, the Mission Director, State Health Mission, U.P. (SHM) stationed at Lucknow issued directions for filling up the vacant post of doctors under the Project at the district level, however, misconstruing the communication, and on the premises that the petitioner's name had not been confirmed by the SHM, the CMS, District Hospital, Gautambuddh Nagar proceeded to fill the post on which the petitioner was working. These proceedings were challenged in the writ petition. Therefore, the court held that the writ court at Lucknow had the jurisdiction to hear the matter. 

Further, regarding the merit of the case, court strongly noted that the petitioner suffered due to the negligence of the CMS at Gautambuddh Nagar.

The division bench highlighted that when SHM requested information about vacant positions under the Project in all state hospitals from the district authorities, namely Chief Medical Officers (CMO) and CMSs, the CMO of District Joint Hospital, Gautambuddh Nagar though provided details of paramedics and nurses, the officer omitted the details of the dental surgeons.

Upon further enquiry, the division bench was apprised that the services of all other dental surgeons, similarly engaged as the petitioner, were extended from time to time subject to their performance appraisal, but in June 2022, the petitioner was ousted from the job. 

The division bench noted, "There is nothing on record to show that the performance of the petitioner was found deficient in any manner".

Furthermore, the bench asserted that since dental surgeon appointments were to be made at the state level, the Director, SHM should have requested this data if it was not provided by the CMOs.

Court also pointed out that subsequently, when the Director, SHM was given the data of all doctors working under the Project except the petitioner's post, he did not seek any clarification.

"This is a lapse on the part of the State authorities. Moreover, a specific communication could have been sought by the Director, SHM regarding the petitioner as to whether she was actually working or not, instead of seeking general information," the division bench held. 

It opined that on an absolute misunderstanding and misconception of facts, the CMO and CMS of Gautambuddh Nagar asked the petitioner not to sign the attendance register.

"We have no hesitation in saying that she has been treated unfairly and unjustly merely on account of a communication gap and without any valid ground," court said. 

Therefore, while noting that the post of the petitioner was still vacant, court allowed the petition and asked the authorities to allow her continue her services on the same terms as earlier. 

Case Title: Dr. Neha Khattar v. State Of U.P. Thru. Prin. Secy. Deptt. Medical Civil Secrt. Lko. And Others