S.K. Sen, J.@mdashThis is an application under Order XIV of United Provinces High Courts (Amalgamation) Order, 1948. The facts, inter alia, involved in this writ petition, namely, Civil Misc. Writ Petition No. 1678 (S/B) of 1998 are that the petitioner Dr. Manju Verma, (hereinafter referred to as the first petitioner) was appointed as an ad hoc lecturer in Obstetrics and Gynaecology in State Medical College in November 1975, and was posted as ad hoc lecturer at Maharani Laxmi Bai Medical College, Jhansi. In February 1978, she was transferred as ad hoc lecturer by the State Government to Motilal Nehru Medical College, Allahabad, where while working as ad hoc lecturer, she was regularised as lecturer under the provisions of the Regularisation of Ad hoc Appointment Rules, 1979. She was promoted in December 1980 as ad hoc Reader in Obstetrics and Gynaecology Department and was posted at Baba Raghav Das Medical College, Gorakhpur, but on account of the death of her father-in-law, she was unable to join at Gorakhpur and qontinued to work as a lecturer at Allahabad.
2. It is alleged that while the petitioner was working as a lecturer at Allahabad, the post of Reader in Obstetrics and Gynaecology (Post Partem Programme) were advertised by the Public Service Commission, U.P. Allahabad, in response to which she applied for appointment to the said post. It may be noted here that the posts of Reader in Obstetrics and Gynaecology advertised by the Public Service Commission, U.P., Allahabad, were to be filled in by direct recruitment. As appears from Annexure-1 to the writ petition, the notification dated 9.6.1982 notified by the Public Service Commission, U.P. Allahabad, on the basis of recommendations of Selection Committee : (i) Dr. (Smt.) Veena Mathur ; (ii) Dr. (Smt.) Meera Agnihotri ; (iii) Dr. (Smt.) Sadhana Kala (Upraiti) and (iv) Dr. (Smt.) Manju Verma (Srivastav) were selected in order of merit and Dr. (Smt.) Sandhya Agarwal was placed in the waiting list. It is also alleged that the candidate recommended at Sl. No. 3, i.e., Dr. (Smt.) Sadhana Kala (Upraiti) did not join as Reader in Obstetrics and Gynaecology in pursuance of the recommendations of the Public Service Commission, U. P., Allahabad and consequently, the first petitioner who was at Serial No. 4 moved to the position at Sl. No. 3 and Dr. (Smt.) Sandhya Agarwal, who was in the waiting list, came to the 4th position.
3. It is alleged that the State Government did not issue appointment letters to the candidates selected by the Public Service Commission and before that in November, 1982 and May, 1985, arbitrarily appointed, on ad hoc basis Dr. Radha Jina, Dr. Kumkum Srivastava and Dr. Barun Sarkar as ad hoc Readers in Obstetrics and Gynaecology in State Medical Colleges.
4. It has been alleged that on 19.1.1983 Dr. (Smt.) Veena Mathur and Dr. Meera Agnihotri were offered appointment as Regular Readers in Obstetrics and Gynaecology in the State Medical Colleges but the first petitioner even on 19.1.1983 arbitrarily was not given appointment as Reader in pursuance of the recommendations of the Public Service Commission, U. P., Allahabad and it was on 14.8.1986 that she was appointed as Reader in Obstetrics and Gynaecology on the basis of the recommendations of Public Service Commission, U. P., Allahabad and posted at the State Medical College. Jhansi vide the photostat copy of the appointment letter dated 14.8.1986, Annexure-2 to the writ petition.
5. It is further alleged that in August, 1986 Dr. (Smt.) Veena Mathur working as Reader in Obstetrics and Gynaecology at Allahabad was given ad hoc promotion as Professor and posted at Medical College, Agra. In these circumstances, the petitioner submitted a representation to the State Government that as post of Reader in Obstetrics and Gynaecology has fallen vacant at Allahabad on account of ad hoc promotion of Dr. Veena Mathur, the first petitioner''s posting may be changed from Jhansi to Allahabad. On 31.8.1986, she made a representation to the effect that she may be given posting at Allahabad due to her husband being posted at Allahabad Medical College since a vacancy on the post of Reader (Obstetrics and Gynaecology) was likely to occur on account of promotion of Dr. Veena Mathur as Professor, Obstetrics and Gynaecology at S. N. Medical College, Agra. A photostat copy of the representation dated 31.8.1986 made by her for her posting to Allahabad has been annexed as Annexure-2A to the writ petition. It is alleged that on 3.4.1987 the State Government posted the first petitioner as Reader in Obstetrics and Gynaecology at Allahabad in supersession of the posting at Jhansi. A copy of the order dated 3.4.1987 has been annexed as Annexure-3 to the writ petition.
6. It has been further alleged that the seniority mentioned in the seniority list dated 10.4-1992 and the seniority list of 1991 were similar but both the seniority lists were prepared arbitrarily showing the first petitioner below Dr. Sandhya Agarwal, Dr. Barun Sarkar and Dr. (Smt.) Gauri Ganguli. On coming to know of the wrong preparation of the seniority list in the year 1991, which was repeated on 10.4.1992, she made a number of representations for the correction of the seniority list commencing from 1992 to 1997. Four of such representations have been annexed as Annexures-5 to 8 to the writ petition.
7. It is also alleged in the writ petition that the Secretary, and the Director of Medical Education, U. P. Government, Lucknow, repeatedly assured the first petitioner''s husband Dr. A.N. Verma, presently posted as Professor in Orthopedics at Medical College, Allahabad, that the seniority list would be corrected but did not do so in spite of their assurances.
8. The contention of the first petitioner is that in spite of her being senior to Dr. Sandhya Agarwal, Dr. Barun Sarkar and Dr. (Smt.) Gauri Ganguli, she was denied promotion as Professor in Obstetrics and Gynaecology while Dr. Sandhya Agarwal and Dr. (Smt.) Gauri Ganguli were made as ad hoc and promoted as Professors in the year 1996 and 1990 respectively. It has been claimed that the first petitioner is senior as Reader in Obstetrics and Gynaecology to Dr. Sandhya Agarwal, Dr. Barun Sarkar and Dr. (Smt.) Gauri Ganguli and she was entitled to be promoted as Professor in Obstetrics and Gynaecology prior to Dr. Sandhya Agarwal, Dr. Barun Sarkar and Dr. (Smt.) Gauri Ganguli and that she is entitled to be regularised after giving retrospective promotion as Professor and she cannot be subjected to any further discrimination as she has already suffered immensely for she is being deprived of the promotion as Reader since 14.1.1983.
9. It is alleged that on 2.12.1998 the State Government passed an order rejecting the representations of the first petitioner for her being placed above Dr. (Smt.) Sandhya Agarwal, Dr. Barun Sarkar and Dr. (Smt.) Gauri Ganguli, although a perusal of the said order dated 2.12.1998 shows that the case of the first petitioner claiming seniority over Dr. Sandhya Agarwal and Dr. Barun Sarkar has not been adverted to at all and the seniority has been determined only qua Dr. (Smt.) Gauri Ganguli. A photostat copy of the order dated 2.12.1998 passed by the State Government rejecting the representations of the first petitioner has been annexed as Annexure-14 to the writ petition.
10. It is also the contention of the first petitioner that on 18.10.2000, the Director, Medical Education and Training, U. P. by means of letter dated 18.10.2000 published provisional seniority list Inviting objections to the same and the first petitioner as well as Dr. (Smt.) Gauri Ganguli filed objections to the same. The first petitioner on 21.10.2000 submitted her representation mentioning therein that she was selected by the Public Service Commission, U. P. Allahabad during the year 1981-82 and Dr. (Smt.) Gauri Ganguli was rejected by the Commission but appointment in favour of the first petitioner was purposely delayed and it was on 14.8.1986 that the first writ petitioner was issued the letter of appointment, true copy of which is Annexure-2 to the writ petition. So far as Dr. (Smt.) Gauri Ganguli is concerned, her ad hoc appointment was regularised on 12.1.1990 under the provisions of Regularisation of Ad hoc Appointment Rules, 1988 and as such she is junior to the first petitioner.
11. It is further contended in the writ petition that in her representation dated 21.10.2000, Dr. (Smt.) Gauri Ganguli has alleged that her date of substantive appointment was 9.9.1986 and that the date of her substantive appointment shown as 12.1.1990, is not correct and the first petitioner''s date of substantive appointment as 14.8.1986 was not correct inasmuch as the first petitioner, according to Dr. (Smt.) Gauri Ganguli, was on that date working as Lecturer at the Medical College, Allahabad and that in pursuance of the Government order dated 3,4.1987, the first petitioner joined on 4.4.1987 on the post vacated by Dr. (Smt.) Gauri Ganguli and Dr. (Smt.) Gauri ''Ganguli, therefore, desired that the State Government should amend the dates mentioned in the provisional seniority list.
12. The first petitioner has taken several other points alleging irregularity and illegality in the matter of determination of her seniority and under the circumstances, she has prayed for the following reliefs :
(i) Issue a writ of mandamus or a writ, order or direction in the nature of mandamus requiring the opposite parties to dispose of the representations of the petitioner regarding seniority.
(ii) Issue a writ or mandamus or writ, order or direction in the nature of mandamus restraining the opposite parties from holding the departmental promotion committee on 12.11.1998 or any other subsequent date without correcting the seniority list of the Readers in Obstetrics and Gynaecology in the State Medical Colleges.
(iii) Issue a writ of mandamus, or a writ, order or direction in the nature of mandamus requiring the opposite parties to give promotion to the petitioner as Professor in Obstetrics and Gynaecology from the date/dates her juniors Dr. Sandhya Agarwal and Dr. Gauri Ganguli were given promotion.
(iv) Issue any other writ, order or direction for which the petitioner is entitled to under law.
(iv-a) Issue a writ of certiorari or a writ, order or direction in the nature of certiorari to quash the order dated 2.12.1998 (Annexure-14) passed by the State Government holding the petitioner junior to Dr. (Smt.) Gauri Ganguli.
(v) Award costs to the petitioner against the opposite parties.
(v-a) Quash the office order dated 30.11.2000 (Annexure-15 to the writ petition) passed by the State Government.
13. A writ petition being Civil Misc. Writ Petition No. 1945 of 2000 was also filed on behalf of Dr. (Smt.) Gauri Ganguli, in the Lucknow Bench of this Court wherein she has also prayed for the following reliefs :
(i) Issue a writ, order or direction in the nature of quo warranto not allowing the respondent No. 3 to continue on the post of regular Reader in Motilal Nehru Medical College, Allahabad, in Obstetrics and Gynaecology under Post Partem Programme.
(ii) Issue a writ, order or direction in the nature of certiorari quashing the paragraph No. 3 of the order dated 3.4.1987 issued by respondent No, 1 (Annexure-5 to the writ petition).
(iii) Issue a writ, order or direction in the nature of mandamus, directing the respondent No. 1 to delete the name of the respondent No. 3 Dr. (Smt.) Manju Verma from the final seniority list dated 30.11.2000, which was issued fixing the seniority of members in Obstetrics and Gynaecology of Medical Colleges.
(iv) Issue any other writ, order or direction as this Hon''ble Court may deem proper ; and
(v) Award costs of petition in favour of petitioner."
The said writ petition was directed by order dated 15.12.2001 passed by a Division Bench consisting of Hon''ble Jagdish Bhalla and Hon''ble R.D. Mathur, JJ., that the Lucknow Bench has no jurisdiction and the writ petition was to be filed at Allahabad. Accordingly, the same was filed at Allahabad.
14. It appears that the petitioner is resident of Allahabad. Private respondent Nos. 4, 5 and 6 are at Allahabad. U. P. Public Service Commission, which has to determine the seniority is also at Allahabad. Only the representations were rejected by Secretary Medical Education, U. P. and Director Medical Education, U. P. to whom the representations were made, are at Lucknow. Accordingly, the question arises if the matter should be transferred to Allahabad? However, Mr. Umesh Chandra, learned Senior Advocate has strongly referred to Clause 14 of the U. P. High Court (Amalgamation) Order, 1948 and has submitted that the proceedings may be transferred at the hearing stage only and not otherwise. In the instant case, according to him, since hearing has been concluded, the question of sending the matter to Allahabad from Lucknow does not arise.
15. He has further submitted that the provisions similar to Chapter VII, Rule 1 of the Rules of Court, 1952, are to be found in Order XX, Rule 1, C.P.C. and the Supreme Court has held in the case of
16. It is also contended on behalf of applicant that part of cause of action arose at Lucknow because of the passing of the impugned order dated 2.12.1998 and 30.11.2000 at Lucknow and therefore, the writ petition was rightly entertained at Lucknow. The residences of Dr. (Smt.) Gauri Ganguli and Dr. (Smt.) Manju Verma are at Allahabad and their being posted at Medical College, Allahabad, is of no consequence.
17. In support of his case, the learned counsel has relied upon the cases of
18. Learned counsel for Dr. (Smt.) Gauri Ganguli has urged that the question involved is with regard to seniority of both the persons who are at Allahabad and both are also residing at Allahabad. Further, according to her, hearing was also not in fact concluded. Since the counsel for the writ petitioner Dr. Manju Verma could only make his submissions and the Senior Counsel for Dr. (Smt.) Gauri Ganguli Sri K.C. Sinha being absent, adjournment was prayed on his behalf and no submission could be made on behalf of Dr. (Smt.) Gauri Ganguli. However, the finding that the Division Bench has passed orders that the hearing has been concluded ; application has also been made for recall of the said order. Under such circumstances, it is not correct to say that the hearing has been concluded. In fact, there is scope for further hearing of the matter.
19. Sri Rajeev Sharma, learned standing counsel submits that since on the same cause of action, another writ petition filed by Dr. (Smt.) Gaurl Ganguli, being Writ Petition No. 1945 (S/B) of 2000 was returned to her vide order dated 15.12.2000, with liberty to file a fresh writ petition at Allahabad that this Court (Lucknow Bench) has no jurisdiction with the matter, in view of the fact that claim of the post of Reader and Head of Department of Gynaecology is at Allahabad Medical College, both the parties are residing at Allahabad and no issue has arisen within the territorial area of Oudh except that the order has been passed at Lucknow, the Writ Petition No. 1678 (S/B) of 1998 should be transferred to Allahabad.
20. I have considered the respective submissions of the parties.
21. It is apparent from the writ petition that the writ petitioner has been working in Motilal Nehru Medical College, Allahabad and on the basis of her claim for seniority as made in her representation, she prayed for a mandamus directing the opposite party No. 1 to give promotion to the petitioner as Professor in Obstetrics and Gynaecology whereas Dr. (Smt.) Gauri Ganguli in her Writ Petition No. 1945 (S/B) of 2000 has prayed for not allowing the respondent No. 3 to continue on the post of regular Reader in Motilal Nehru Medical College, Allahabad in Obstetrics and Gynaecology. She has also prayed for a direction to respondent No. 1 to delete the name of respondent No. 3 Dr. (Smt.) Manju Verma from the final seniority list dated 30.11.2000, which was Issued fixing seniority of the Readers in Obstetrics and Gynaecology of Motilal Nehru Medical College, Allahabad. Therefore, both the writ petitions, one filed by first writ petitioner Dr. Smt. Manju Verma and the other by Dr. (Smt.) Gauri Ganguli relate to determination of seniority whereas Dr. (Smt.) Manju Verma claims her seniority against Dr. (Smt.) Gauri Ganguli and also the post which is now being held by Dr. (Smt.) Gauri Ganguli at Motilal Nehru Medical College, Allahabad.
22. Dr. (Smt.) Gaurl Ganguli in her writ petition in effect claims the same relief for a direction not to allow said Dr. (Smt.) Manju Verma to continue in the post of regular Reader as according to her, she is not entitled to hold the post in accordance with her seniority, while in the writ petition of Dr. (Smt.) Gauri Ganguli being Writ Petition No. 1945 (S/B) of 2000, it was argued that the High Court, Lucknow Bench, has no jurisdiction to entertain the said petition and it had to be filed at Allahabad High Court. Accordingly, the said writ petition was filed at Allahabad. There is no reason to take a different stand in the writ petition filed by Dr. (Smt.) Manju Verma when the consequential effect of both the writ petitions are the same. That apart, both the writ petitioners, i.e., Dr. (Smt.) Manju Verma and Dr. (Smt.) Gaurl Ganguli are residents of Allahabad. Other Private respondent Nos. 4, 5 and 6 are also at Allahabad, the U. P. Public Service Commission, which has to determine the placement and seniority is also at Allahabad. There is no reason for proceeding with the matter of the writ petitioner at Lucknow Bench when the other writ petition which is of the same nature, has already been directed to be filed at Allahabad.
23. The submission of Mr. Umesh Chandra, learned senior counsel that hearing has concluded, does not appear to be correct. In fact prayer for adjournment was made on behalf of Dr. (Smt.) Gauri Ganguli since her senior counsel Sri K.C. Sinha was not available on that date because of Illness of his family member. Learned Judge, however, only heard Mr. Umesh Chandra Senior Advocate and reserved the judgment and thereafter an application was made on behalf of Dr. (Smt.) Gauri Ganguli for recalling of the said order. The matter is still open for adjudication and in the event recall order is passed, the submission has to be made and the matter has to be heard. For proper ascertainment and determination of the scope of Clause 14, of the Amalgamation Order, the same is set out herein below :
"14. The new High Court, and the Judges and Division Courts thereof, shall sit at Allahabad or at such other places in the United Provinces as the Chief Justice may, with the approval of the Governor of the United Provinces, appoint :
"Provided that unless the Governor of the United Provinces with the concurrence of the Chief Justice, otherwise directs, such Judges of the new High Court, not less than two in number, as the Chief Justice, may, from time to time nominate, shall sit at Lucknow in order to exercise in respect of cases arising in such areas in Oudh, as the Chief Justice may direct, the jurisdiction and power for the time being vested in the new High Court :
Provided further that the Chief Justice may in his discretion order that any case or class of cases arising in the said areas shall be heard at Allahabad."
24. In my view, Clause 14 of the Amalgamation Order does not take away the power of the Chief Justice, to exercise his discretion and pass orders in any case or class of cases arising within the area of Oudh to be heard at Allahabad. The interpretation given by Mr. Umesh Chandra learned senior counsel does not appear to be correct. That apart, in the instant case, hearing on behalf of one of the parties is concluded, the scope of hearing on behalf of other party still remains. It appears that both the cases really relate to the areas not covering Oudh but falls within the jurisdiction of Allahabad. The decisions cited by Mr. Umesh Chandra learned senior counsel as mentioned above do not really assist him.
25. The decision in the case of Arjun Singh v. Mohinder Kumar, AIR 1964 SC 993, relied upon by Sri Umesh Chandra has no application to the facts and circumstances of the present case as the same relates to the scope of Order IX, Rule 7, C.P.C. for setting aside the hearing. The said provisions are quite distinct from the scope and meaning of Clause 14 of the Amalgamation Order and the Proviso thereto. In the aforesaid decision, there were three suits between the parties. In one suit, plaintiff was present and the defendant was absent. Counsel for the defendant had no instructions and the case proceeded ex parte. The plaintiff examined his witnesses and the evidence was closed and the argument concluded with the words ''judgment reserved". In the second suit, plaintiff was absent and the defendant with his counsel was present. Counsel for the plaintiff had no instructions. The suit was dismissed as per order passed separately. The third suit was also decreed ex parte. So, the three applications were filed in the aforesaid three suits for setting aside the ex parte order and decree and all the three applications were disposed of by a common Judgment and order of the Civil Judge, who held that the story of the illness of the appellant which had been put forward as affording sufficient reasons for not being present in Court, was false. Thus, in the case referred to above, the Supreme Court has dealt with the question of setting aside ex parte orders which have no relevance to the facts of the present case.
26. The Supreme Court in
"The word "heard" means that case which have already been instituted or filed at Lucknow may in the discretion of the Chief Justice under the second proviso to paragraph 14 of the order be directed to be heard at Allahabad."
Considering the facts and circumstances of the case, it appears to me that the power to exercise the discretion vested in the Chief Justice under the second proviso to paragraph 14 of the order shall be so exercised as to direct that the present writ petition, which has been instituted and filed at Lucknow Bench, be directed to be heard at Allahabad. In my view, the judgment in Nasiruddin''s case (supra) does not in any way come to the aid of the writ petitioner although relied upon by his counsel Mr. Umesh Chandra.
27. The case of U.P. Rashtriya Chini Mill Adhikari Parishad v. State of Uttar Pradesh and Ors. (supra) relied upon by Mr. Umesh Chandra, Senior Advocate may also be taken note of. The aforesaid decision has no application to the facts of the case since in the aforesaid decision before the High Court, Notification issued by the U. P. Government at Lucknow was challenged, so it was held that the petitioner had been aggrieved only from the issuance of the Order/Notification which arose from Lucknow. In the instant writ petition, the position is quite different as already stated hereinbefore. In my view, the present writ petition is quite distinguishable and as such the case referred to above does not assist the writ petitioner.
28. In the case of Nityanand Tiwari v. State of U. P. and Ors. (supra), two questions came up for consideration before the Full Bench ;
"(1) Whether writ petition against an order passed by an authority outside the Oudh area can be entertained by this Court at Lucknow, if some order or the Act passed by a person or the Legislature in the areas of Oudh is also challenged in order to provide a ground for challenging the said order of the authority.
(2) Whether Lucknow Bench will have Jurisdiction to interfere with the order passed by an authority outside Oudh areas either by way of interim order or by way of final order, if any proceeding in the form of appeal, revision or a representation is pending against it before an authority within Oudh areas, even though appeal or revision or representation has not been decided and the order of the original authority has not yet merged with the order of the higher authority within Oudh areas?"
29. The questions raised for determination in the aforesaid decisions has no bearing to the facts and circumstances of the present case. The principles on which the said two questions were answered cannot be doubted. However, no such issue or question arises in the instant writ petition and as such, the said decision cannot also come to aid in support of the case of the writ petitioner. In view of aforementioned reasons, I am of the view that it shall be appropriate for me to exercise the discretion as Chief Justice to direct the writ petition, which has been instituted at Lucknow. to be transferred to Allahabad.
30. Considering the aforesaid glaring situation and facts and circumstances of the case, I am of the opinion that this is a fit and appropriate case where order should be made for hearing of the writ petition at Allahabad.
31. Accordingly, the petition under Clause 14, of the Amalgamation Order is allowed and the writ petition, being Writ Petition No. 1678 (S/B) of 1998, Dr. Manju Verma v. State of U. P. and Ors., which has been filed at Lucknow Bench, is directed to be transferred to Allahabad for hearing, which shall be listed for hearing before the appropriate Court.
Office is directed to transmit the necessary records forthwith to Allahabad High Court.
