Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11889 of 2013 ====================================================== 1.RAJESH KUMAR SINHA S/O LATE ASHOK KUMAR SINHA RESIDENT OF MOHALLA- NAWARATANPUR, P.O AND P.S- KHAGAUL, DISTRICT- PATNA. 2.SUNIL KUMAR S/O LATE RAMDHAR RAM RESIDENT OF MOHALLA- JAIHIND COLONY, BARKA NATH MORE, ARA, P.S- TOWN ARA, DISTRICT- BHOJPUR. VERSUS .... .... PETITIONER/S STATE OF BIHAR THROUGH THE DIRECTOR, 1.THE DEPARTMENT OF HEALTH, BIHAR, PATNA. 2.THE ASSISTANT DIRECTOR, CONTROL), BIHAR, PATNA. 3.THE FILARIA OFFICER (FILARIA CONTROL UNIT), PATNA, WEST, DANAPUR. 4.THE RAJBANSHI NAGAR HOSPITAL, DEPO, PATNA. INSPECTOR, N.C. ARE DEPO HEALTH SERVICE (FELARIA INCHARGE FILARIA .... .... RESPONDENT/S ====================================================== Appearance : For the Petitioner/s : Mr. Sushil Kumar, Adv. For the Respondent/s : Mr. Rishiraj Sinha GP-19 & Mr. Rakesh Prabhat AC to GP-19, Mr. Rakesh Kumar AC to GP-19 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 6 04-09-2013 Heard learned counsel for the parties. 2. The prayer of the petitioners in this writ application reads as follows:- “1(I) For quashing of the order contained in memo No. 371 Patna dated 10.06.13 passed by the respondent No.2 (Assistant Director) appointing the petitioners on deputation in special circumstances in the office of Hon’ble Health Minister at his residence and fenlhir directed the petitioners to join the transferred or deputed place within 24 Hours.”
Legal Reasoning
3. This Court, taking into submissions of both the parties Patna High Court CWJC No.11889 of 2013 (6) dt.04-09-2013 2 had passed a detailed order on 5.7.2013, relevant portion whereof reads as follows:- “Heard learned counsel for the parties. In this writ application the two petitioners have assailed the order dated 10.06.2013 passed by the Assistant Director of Health Services (Filaria Control), Bihar, Patna. In the writ application it has been stated that earlier petitioner no.1 was transferred on deputation to the Office of the Health Minister at his residence n 01.12.2010 and for the same an Office Order was issued by respondent no.2, that is, the Assistant Director, Health Services (Filaria Control), Bihar, Patna. Later on, on 22.02.2012 the said order of petitioner no 1 was revoked and he was posted at Rajbanshi Nagar Hospital Depot. As with regard to petitioner no.2, it has been stated that he was directed to join New Capital Area Depot, Rajbanshi Nagar Hospital on 03.08.2012 within twenty four hours and from there he was orally asked to work at the house of the Health Minister. It is in this background that the petitioners have assailed the impugned order dated d10.06.2013 wherein it has been stated that such orders have been passed wholly arbitrary and illegal manner. This Court finding that the impugned order of transfer had envisaged some special circumstances and contingencies as would be apparent from the reading of the same, quoted here in below:- dk;kZy;%& lgk;d funs”kd Lok0 lsok ¼Qk0fu0½ fcgkj] iVuk Kkikad--------------------------@ iVuk] fnukad---------------------- vkns’k ¼1½ Jh jkts”k dqekj flUgk {ks=h; dk;Zd(cid:217)kkZ Qk0fu0 bdkbZ iVuk if”pe …2‰ Jh lquhy izlkn {ks=h; dk;Zd(cid:217)kkZ Qk0fu0 bdkbZ iVuk if”pe fo”ks’k ifjfLFkfr esa ekuuh; LokLF; ea=h fcgkj iVuk ds vkoklh; dk;kZy; esa vxys vkns”k rd Patna High Court CWJC No.11889 of 2013 (6) dt.04-09-2013 3 vkidh izfrfu;qfDr dh tkrh gSA lkFk gh vkidks vkns”k fn;k tkrk gS fd 24 ?kaVk ds vUnj vius izfrfu;qDr LFkku ij ;ksxnku nsuk lqfuf”pr djsaA g0@& vLi’V lgk;d funs”kd Lok0 lsok0 …Qk0 fu0‰ fcgkj iVuk Kkikad 371 @ iVuk] fnukad 10-06-13 had directed the Assistant Director, Health Services (Filaria Control), the author of the order, to file counter affidavit and appear in person because there was some very serious allegation against him regarding the two petitioners being subjected to the work in the residence of the Minister for which they were never appointed. In compliance of the afore mentioned order, Dr. K.C. Kumar, Assistant Director, Health Services (Filaria Control), has filed his counter affidavit and appeared in person and has also produced the records, namely, Government File No. 01/02-2013 under heading “Parti Niyukti”. From the said file and, in fact, from the counter affidavit it does not transpire as to how the information with regard to requirement of the two petitioners at the residential Office of the Health Minister was found necessary. In fact, the only piece of information available in the file in the note sheet at page 4 reads as follows: **l0 fu0 Ekkuuh; Lok0 ea=h ds vkokl ,oa vxy oxy esa dkQh xUnxh ,oa ikuh ds teko ds dkj.k l le; fNM+dko dk;Z esa dfBukb;ksa dks /;ku esa j[krs gq, ea=h vkokl ,oa vxy cxy ds {ks= esa iM+us okys ukyk dh lQkbZ ,oa ykok fujks/kd nok dk fNM+dko djus gsrq Jh jkts”k dqekj flUgk {ks0 dk;ZdrkZ ,oa Jh lquhy izlkn {ks0 dk;ZdrkZ Qk0fu0 bdkbZ iVuk if”pe iwoZ ls izfrfu;qDr Qkbysfj;k fMiks jktoa”khuxj dks vxys vkns”k rd ekuuh; Lok0 ea=h fcgkj iVuk ds vkoklh; dk;kZy; esa izfrfu;qDr fd;k tk ldrk gSA** The afore mentioned notings given by the concerned Patna High Court CWJC No.11889 of 2013 (6) dt.04-09-2013 4 Dealing Assistant would create an impression that there was some prior inspection of the House of the Minister where someone had found water logging requiring deputation of sprayers. However there is no such inspection report available in the fill Dr. Sinha, however on query has submitted that he had personally held such inspection of the house of the Minister as it was part of his duty. The petitioners were not being deputed in the residential office rather they were sought to be deputed for doing specific work by spraying in the drain around house of the Minister. In that view of the matter, there is a complete gap between Office Order and what has been recorded in the file. It is true that the Minister’s residential Office has to be maintained by the State Government but nothing has been brought on record which authorises the Assistant Director, Filaria Control, to look after the residential set up of the Minster. If the Minister would require services of any person, his personal secretary will have to make a requisition to the Government and such services of any government servant can be made available with the prior approval of Principal Secretary of the Health Department and not by the Assistant Director, Filaria Control. In that view of the matter, this Court find the explanation of Dr. K.C. Kumar to be wholly unsatisfactory. Since this Court had already stayed the operate of afore mentioned impugned order dated 10.6.2013 on 28.06.2013, this Court would direct the Principal Secretary of the Health Department to personally examine the whole issue relating to deputation of the two petitioners by Dr. K.C. Kumar, Assistant Director, Filari Control and file his supplementary counter affidavit as to whether the impugned order was permissible in law and was done as per the settled norms for maintaining the residential office of the Cabinet Minister. The Principal Secretary of the Department, having conducted his enquiry will file his supplementary counter affidavit enclosing a copy of his report before this Court within a period of four weeks of receipt of this Patna High Court CWJC No.11889 of 2013 (6) dt.04-09-2013 5 order. Put up this case after four weeks under the same heading at the top under the Admission-I when Dr. K. C. Kumar, Assistant Director, Filaria Control, shall again remain present on that day. Let a copy of this order as well as the file in question
Legal Reasoning
in sealed cover be given to Mr. Rishi Raj Sinha G.P.-19 for its being handed over to Principal Secretary of the Health Department after keeping the photocopy of the file on record of this case.” 4. This Court has also carefully perused the enquiry report of the Principal Secretary which is annexed as Annexure-A to the counter affidavit. This Court must record its total disapproval with the findings arrived at by the Principal Secretary of the Health Department in his aforesaid enquiry report specially when he has not even recorded as to how he could come to the conclusion that the order was passed by Dr. Krishna Chandra Kumar for deputing the petitioners in the residential office of the Cabinet Minister of Health. In fact, he is not even quoted the source or authority in person who had asked Dr. Kumar, the Assistant Director, Filaria Control to depute the petitioners in the residential office of the Health Minister. 5. It has to be also kept in mind that such enquiry was entrusted to the Principal Secretary of the Health Department in view of the specific allegation made on behalf of the petitioners that their services were being exploited for the personal purpose in Patna High Court CWJC No.11889 of 2013 (6) dt.04-09-2013 6 the residential use of the Cabinet Minister. Annexure-7 to the writ application contain the grievance of the petitioners which were placed by them before the Assistant Director, Filaria Control on 11.6.2013, relevant portion whereof reads as follows:- ^^Hkonh; ds Kkikad 371 fnukad 10-06-13 ds }kjk ekuuh; LokLF; eaa=h ds vkoklh; dk;kZy; esa ge deZpkfj;ksa dks izfrfu;qDr fd;k x;k gS tks fu;e ds fo:n~/k gSa blds iwoZ esa Hkh ge deZpkfj;ks a dks vkids Kkiakd 629 fnukad 1-12-10 ds vkns’kuqlkj ek0 Lok0 ea=h th ds vkoklh; dk;kZy; esa izfrfu;qDr fd;k x;k Fkk ftlds fo:n~/k vf/koDrk] iVuk mPp U;k;ky; ds }kjk vkidks odkyru uksfVl ls voxr djk;k x;k Fkk ftlds fo:n~/k vki vius vkns’k la[;k 130 fnukad 22-2-12 ds vkns’kkuqlkj ge dehZ;ksa dk izfrfu;qfDr dks rRdky izHkko ls lekIr djrs gq, Qk0 fu0 bZ0 iVuk iwjc ds vUrxZr ,u0lh0,fj;k fMiks jktoa’khuxj vLirky dk;Z lEiknu gsrq izfrfu;qDr fd;k x;k ftl geyksx vkB …8‰ deZpkjh lfEefyr FksA vkB deZpkfj;ksa esa ls N% …6‰ deZpkfj;ksa dh izfrfu;qfDR ,u0 lh0 ,fj;k fMiks jktoa’khuxj vLirky ls lekIr dj iVuk e/; bdkbZ tks vkids vUrxZr vkrk gS dj fn;k x;k gS vkSj ge nks deZpkjh dh izfruqfDr ,u0 lh0 ,fj;k fMiks jktoa’khuxj vLirky ls lekIr djrs gq, ekuuh; LokLF; ea=h ds vkoklh; dk;kZy; es iqu% nqckjk izfrfu;qDr fd;k tkrk gSa blds fy;s vkidk D;k ea’kk gS os vki gh tkurs gSA ekuuh; LokLF; ea=h th ds vkoklh; dk;kZy; dk;Z gsrq izfrfu;qDr fd;k tkrk gSa mldss vkM+ esa tsSls crZu /kksyokuk] ?kj es a iksNk yxkuk] diM+k fQpokuk ,oa /kwi esa [ksrh djuk bR;kfn tSls dk;Z vuqfpr <azx ls fy;k tkrk gS tks ljdkj ds fu;e ds fo:n~/k gSa blds vkM+ esa vkidk uhth LokFkZ gsrq ge dfeZ;ksa dk xyr <ax ls ge deZpkfj;ksa dks vkids }kjk nksgu ,oa ’kks"k.k fd;k tk jgk gS blds fy, eSa Jh jkts’k dqekj flUgk ,oa Jh lquhy izlkn {ks0 dk;ZdRrkZ Qk0 fu0 bZ0 iVuk if’pe …nkukiqj‰ izfrfu;qfDr ds uke ij ikap …5000‰ gtkj :i;s vkids }kjk ekax fd;k x;k gS nks rks izfrfu;qfDr ugha djsaxsA Jh jkts’k dqekj flaUgk ,oa lquhy izlkn {ks0 dk;ZdRrkZ Qk0 fu0 bZ0 iVuk if’pe dks ,d Patna High Court CWJC No.11889 of 2013 (6) dt.04-09-2013 7 lIrkg ds vUnj vfoyEc izfrfu;qfDr jn~n djus dh d‘ik dh tk;A ftldh lwpuk odkyu uksfVl ds ck/;e ls vkidks nh tk jgh gSA deZpkjh ok?; gksdj iVuk mPp U;k;ky; es a vkids fo:n~/k ;kfpdk nk;j djus dks tk jgs gSA ftldh lwpuk vkidks nh tk jgh gSA lgk;d funskd Lok0 lsok …Qk0 fu0‰ fcgkj] iVuk dk;kZy; esa cgqr de vkrs gSa vkSj viuk futh uflZax gkse pykrs gSa tkas fu;e ds fo:n~ gSa** 6. This complaint of the petitioners was not even looked into by the Principal Secretary of the Health Department much less examined with regard to the allegation made therein and a table report has been submitted in the name of enquiry report by the Principal Secretary of the Health justifying the order of deputation. Surprisingly, in such enquiry report, a deputation has been described to be for a short tenure whereas the stand of Dr. Kumar in his earlier affidavit was that they were deputed for only a specific purpose and report back to the head office everyday. Thus, it becomes clear that the Principal Secretary, instead of enquiring in the matter in a fair and objective manner, has only sought to hush-up the matter. 7. This Court could have, therefore, proceeded further in the matter but, then, learned counsel for the petitioners has been instructed not to press this writ application. It is not very difficult for this Court to appreciate such prayer for withdrawal of this case by the petitioners who are lowly paid Class-4 employees and cannot take their stand against the mighty officials of the Health Patna High Court CWJC No.11889 of 2013 (6) dt.04-09-2013 8 Department. 8. This Court, therefore, would dismiss this writ application as not pressed. 9. Let a copy of this order be sent to the Principal Secretary of the Health Department. 10. The personal appearance of Dr. Krishna Chandra Kumar, Assistant Director, Filaria Control, Health Department, Bihar is hereby dispensed with and the original record produced by him should also be returned after retaining the photocopy thereof with the record of this writ application. Ranjan/Rishi (Mihir Kumar Jha, J)