Court No.

- 18

Case :- WRIT - A No. - 1694 of 2023

Petitioner :- Manoj Kumar Singh And 3 Others

Respondent :- State Of U.P. Thru. Prin. Secy. Medical Edu. Deptt. Lko.
And 4 Others
Counsel for Petitioner :- Ajay Pratap Singh
Counsel for Respondent :- C.S.C.,Shubham Tripathi

Hon'ble Alok Mathur,J.

1. Heard Sri Ajay Pratap Singh, learned counsel for the petitioners, learned
Standing counsel for respondent No.1 and Sri Shubham Tripathi for
respondent Nos 2 to 5.

2. By means of the present writ petition the petitioners have assailed the
order dated 4th February, 2023 where it is provided that promotions to the
post of Operation Theater (Assistant) are likely to take place and the
qualifications to be possessed by the candidates including the petitioners
have been provided therein.

3. Learned counsel for the petitioners submits that the petitioners were
initially appointed on the post of Patient Helper (re-designated as Hospital
Attendant) which work was general in nature. It is further stated that they
had worked in various departments at the discretion of the respondents but
now as the promotions are taking place it has been provided that Hospital
Attendant should have worked in an Operation Theater, Departments of
Anesthesia, Interventional Radiology, Bronchoscope, Endoscopy, Cardiac
Cath Lab, Blood Bank, Central Supply Service. He submits that this
condition is arbitrary and requires interference in as much as deployment
of the petitioners was solely on the discretion of the respondents just
because the petitioners have not worked in any of the specific
departments, they cannot be kept outside the purview of the promotions as
provided in the order dated 4th February, 2023.

4. Sri Shubham Tripathi, learned counsel for respondents on the basis of

counter affidavit filed by the respondents has opposed the writ petition and
submitted that the post of Operation Theater Assistant requires certain
technical experience and, therefore, there is a rational nexus of experience
in particular departments as stated in the order dated 4.2.2023.

5. The writ petition has been opposed on the ground petitioners have an
alternate remedy before the Visitor and present writ petition should have
been dismissed on the ground of alternative remedy.

6. This Court has considered the submission of learned counsel for

petitioner and noticed that the grievance of the petitioners in the present
case is with regard to their promotion to the post of Operation Theater
Assistant (O.T. Assistant). It is stated that petitioners who are working on
the post of Hospital Attendant have a right to be promoted to the next
higher post as per resolution passed by the General Body and duly
approved on 19.12.2022. According to the said resolution, 25% of the
sanctioned post of O.T. Assistant are being filled up for promotion from
Hospital Attendants who have completed 5 years of service.
7. It has been submitted that petitioners have a vested right and much more
they have fundamental right for such promotion and any denial by
respondents is clearly violative of Articles 14 & 16 of the Constitution of
India. Considering the fact that the present writ petition has been filed for
vindicating the fundamental rights and also that the said selection is
underway and hence looking into the nature of the petition and the rights
involved, this matter is cognizable by this Court in exercise of power
under Article 226 of Constitution of India and considering the rendition of
the Supreme Court in the Case of Whirlpool corportion Vs. Registrar of
T.M., Mumbia & Others, reported in 1998 (8) SCC 1, has held as
under:-

" The power to issue prerogative writs under Article 226 of the
Constitution is plenary in nature and is not limited by any other provision
of the Constitution. This power can be exercised by the High Court not
only for issuing writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari for the enforcement of any of the
Fundamental Rights contained in Part III of the Constitution but also for
"any other purpose".

Under Article 226 of the Constitution, the High Court, having regard to
the facts of the case, has a discretion to entertain or not to entertain a writ
petition. But the High Court has imposed upon itself certain restrictions
one of which is that if an effective and efficacious remedy is available, the
High Court would not normally exercise its jurisdiction. But the
alternative remedy has been consistently held by this Court not to operate
as a bar in at least three contingencies, namely, where the writ petition
has been filed for the enforcement of any of the Fundamental Rights or
where there has been a violation of the principle of natural justice or
where the order or proceedings are wholly without jurisdiction or the vires
of an Act is challenged. There is a plethora of case-law on this point but to
cut down this circle of forensic whirlpool, we would rely on some old
decisions of the evolutionary era of the constitutional law as they still hold
the field.

Rashid Ahmed v. Municipal Board, Kairana [1950 SCC 221 : AIR 1950
SC 163 : 1950 SCR 566] laid down that existence of an adequate legal
remedy was a factor to be taken into consideration in the matter of
granting writs. This was followed by another Rashid case, namely, K.S.
Rashid & Son v. Income Tax Investigation Commission [AIR 1954 SC
207 : (1954) 25 ITR 167] which reiterated the above proposition and held
that where alternative remedy existed, it would be a sound exercise of
discretion to refuse to interfere in a petition under Article 226. This
proposition was, however, qualified by the significant words, "unless there
are good grounds therefor", which indicated that alternative remedy
would not operate as an absolute bar and that writ petition under Article
226 could still be entertained in exceptional circumstances.

A specific and clear rule was laid down in State of U.P. v. Mohd. Nooh
[AIR 1958 SC 86 : 1958 SCR 595] as under:

"But this rule requiring the exhaustion of statutory remedies before the
writ will be granted is a rule of policy, convenience and discretion rather
than a rule of law and instances are numerous where a writ of certiorari
has been issued in spite of the fact that the aggrieved party had other
adequate legal remedies."
This proposition was considered by a Constitution Bench of this Court in
A.V. Venkateswaran, Collector of Customs v. Ramchand Sobhraj
Wadhwani [AIR 1961 SC 1506 : (1962) 1 SCR 753] and was affirmed
and followed in the following words:

"The passages in the judgments of this Court we have extracted would

indicate (1) that the two exceptions which the learned Solicitor General
formulated to the normal rule as to the effect of the existence of an
adequate alternative remedy were by no means exhaustive, and (2) that
even beyond them a discretion vested in the High Court to have
entertained the petition and granted the petitioner relief notwithstanding
the existence of an alternative remedy. We need only add that the broad
lines of the general principles on which the Court should act having been
clearly laid down, their application to the facts of each particular case
must necessarily be dependent on a variety of individual facts which must
govern the proper exercise of the discretion of the Court, and that in a
matter which is thus pre-eminently one of discretion, it is not possible or
even if it were, it would not be desirable to lay down inflexible rules which
should be applied with rigidity in every case which comes up beforebefore
the Court."

even if there is alternate remedy still does not bar in exercise of powers by
this court under Article 226 of the Constitution of India and accordingly
the preliminary objection in this regard raised by respondents is rejected.

8. It has been submitted by learned counsel for petitioner that all the
norms /conditions of service of the teaching and non-teaching staff are
being followed on the pattern of All India Institute of Medical Sciences.
He further submits that even in All India Institute of Medical Sciences,
the post of O.T. Assistant is filled up amongst the persons working on the
post of Hospital Attendant and there also no post reserved for the persons
who have experience for working in operation theater department of
Anesthesia, Interventional Radiology, Bronchoscope, Endoscopy, Cardiac
Cath Lab, Blood Bank and Central Supply Service. This Court is also of
the considered view that petitioners while discharging their duties as
Hospital Attendant were required to work in various departments and the
work is general in nature not requiring any special knowledge in any field
of medicine. The work were assigned to the petitioners by the respondents
and they did not have any say or option of working in any of the
departments. They have faithfully worked in the departments which they
were assigned. At any time prior to the said recruitment, it was never
known to the petitioners that their assignment in a particular department
would one day result is either the selection /non-selection on the
promotional post.

9. Even otherwise to test the arguments of the respondents that only

persons having experience of working in operation theater department of
Anesthesia, Interventional Radiology, Bronchoscope, Endoscopy, Cardiac
Cath Lab, Blood Bank and Central Supply Service is mandatory cannot be
accepted. On the promotional post even a person who does not have any
such experience can be duly trained by the respondent authorities to
discharge the new duties which he may have to discharge on the promoted
post of O.T. Assistant. It is not a precondition that a person should have
full knowledge of working in O.T. to be promoted to the post of O.T.
Assistant. Neither such a condition is available in rules, regulations or
practice of the respondents. Considering the fact that the very basic rights
 of promotion of the petitioners are getting jeopardized by a manner of
selection being made by the respondents, the same can be curtailed or
restricted only in accordance with law, which is just, fair and reasonable
and not otherwise. It has to be duly taken into account that the petitioners
who have vested right for being promotion to the post of O.T. Assistant is
not jeopardized by making any restrictive conditions so as to make them
ineligible for promotion to the post of O.T. Assistant. This court is further
of the considered view that the manner and conditions prescribed for such
promotion are clearly arbitrary and cannot be justified merely because a
person has not previously worked in one of the disciplines cannot be a
reason for his being excluded for consideration for promotion where they
have vested rights to be promoted for the same. Any deficiency in
knowledge or experience can be made up by training which is a widely
accepted norm in any cadre of vocation and cannot be a ground for
exclusion of consideration for promotion. The reason as spelt out by the
respondents for proceeding with the said restrictive conditions is the
working need as well as qualitative and best patient care being a tertiary
hospital is clearly arbitrary and discriminatory and have violative of
Article 14 of the Constitution of India.

10. Needless to say that no reason is forthcoming as to why the persons so

promoted cannot be trained efficiently to discharge the due duties to the
promoted post. Apart from above, the rights of the petitioners for
promotion cannot be denied on the grounds as taken by the respondents.

11. In light of the above, this Court is of the considered view that the
conditions for promotion are clearly arbitrary and accordingly set aside.
This court is also of the considered view that even the resolution dated
04.08.2021 to the extent it provides for promotion to the post of O.T.
Assistant is also arbitrary and deserves to be set aside and accordingly, the
same is set aside to that extent.

12. The respondents are directed to carry out fresh exercise in accordance
with law as well as the observations made by this Court.

13. With the above observations / directions, the writ petition is allowed.

(Alok Mathur, J.)

Order Date :- 13.4.2023
Ravi/

Digitally signed by :-
RAVI SHANKAR SRIVASTAV
High Court of Judicature at Allahabad,
Lucknow Bench