The State Of Bihar Through The Principal Secretary v. Health Department, Bihar, Patna
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.21614 of 2012 ====================================================== Vikas Kumar Chaurasia S/O Late Shiv Nandan Chaurasia R/O Village- Barai Chak Patam, P.S.- Naya Ramnagar, District- Munger, Previously Posted On The Post Of Clerk In The Office Of Filaria Niyantran Ekai, Bhagalpur .... .... Petitioner 1. The State Of Bihar Through The Principal Secretary Versus Health Department, Bihar, Patna 2. Director-In-Chief, Health Department, Bihar, Patna 3. Regional Deputy Director, Health Department, Bhagalpur 4. Assistant Director Sultanganj At Patna Filaria Niyantran Ekai, Health Department, 5. Filaria Officer, Filaria Niyantran Ekai, Health Department, Bhagalpur 6. Civil Surgeon-Cum-Chief Medical Officer, Purnea .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Praveen Kumar Agrawal, Adv. For the Respondent/s : Mr. Jaki Haidar, AC to GA-6 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 13-12-2013 Heard learned counsel for the parties. The prayer of the petitioner in this writ application is to quash the order of his transfer passed by the Assistant Director, Health Services (Filaria Control), Bihar, Patna in Memo No. 457 dated 25.06.2011, whereby and whereunder, ten Clerk cum Store Keepers working in the different units of Filaria Control for a period of three years or more have been transferred from one palce to another and the petitioner also has been accordingly transferred from Bhagalpur to Purnea. Learned counsel for the petitioner in support of the
Legal Reasoning
aforementioned prayer has submitted that firstly, the order of Patna High Court CWJC No.21614 of 2012 (2) dt.13-12-2013 2 transfer passed by the Assistant Director, Health Services (Filaria Control), Bihar, Patna is without jurisdiction, inasmuch as, such power of transfer has been vested only in the concerned Regional Deputy Director of Health Services as per the circular issued by the Director-in-chief of Health Services dated 28.03.2011 (Annexure-2). He has also submitted that as a matter of fact the aforementioned transfer order of the petitioner was sought to be complied by him by reporting at Purnea but his joining was not accepted at Purnea whereafter he has been running around for acceptance of his joining at Begusarai, the earlier place of posting.
Legal Reasoning
Learned counsel for the petitioner has also referred to an order of the Director-in-chief of the Health Services dated 17.10.2012, whereby and whereunder, all the unimplemented transfer orders issued by the Assistant Director, Health Services (Filaria Control), Bihar, Patna has been cancelled. According to the learned counsel for the petitioner, in view of the aforementioned order of the Director-in-chief of Health Services dated 17.10.2012, the petitioner's transfer order will be deemed to have been cancelled but even then the petitioner is not being allowed to report back to his own place of posting at Bhagalpur. Learned counsel for the State on the other hand has submitted that first of all it cannot be said that the petitioner could Patna High Court CWJC No.21614 of 2012 (2) dt.13-12-2013 3 not have been transferred by the Assistant Director, Health Services (Filaria Control), Bihar Patna, inasmuch as, the State Government had specifically delegated power of administrative control including transfer to the Assistant Director, Health Services (Filaria Control), Bihar Patna vide order dated 23.06.2001 as contained in Annexure-A to the counter affidavit of respondent no. 4. He has also submitted that the order relied by the petitioner dated 28.03.2011 delegating power of transfer to Regional Deputy Director of Health Services is only in relation to the Units controlled by the Civil Surgeon and it does not in any way take away the power of the Assistant Director, Health Services (Filaria Control), Bihar Patna who had been specifically delegated the power of administrative control including the transfer of all the employees working in the Filaria Control Units all over Bihar. Learned counsel for the State has also submitted that the petitioner has deliberately flouted the order of transfer and in fact even when he was already relieved by the competent authority at Begusarai w.e.f 21.11.2011 under the order of Filaria Officer contained in Memo No. 248 dated 16.11.2011, the petitioner had neither handed over charge at Bhagalpur nor had reported at Purnea till 18.02.2012 and when due to some technical relieving Patna High Court CWJC No.21614 of 2012 (2) dt.13-12-2013 4 order of the petitioner passed by the Filaria Officer was not accepted by the Civil Surgeon, Purnea, Bihar and a clarificatory order was issued by the Additional Chief Medical Officer dated 26.03.2012, the petitioner had again not reported at Purnea at his transferred place. Learned counsel for the State has also explained that the cancellation of the transfer order issued by the Director-in-chief of Health Services vide his letter dated 17.10.2012 would not cover the case of the petitioner, inasmuch as, his transfer order had already been executed by way of his being released from Bhagalpur way back on 26.03.2012. In the considered opinion of this Court, the order of transfer issued by the Assistant Director, Health Services (Filaria Control), Bihar Patna cannot be said to be without jurisdiction, inasmuch as, the Government circular dated 26.03.2001 does vest such power to the Controlling Officer of the respective Unit. In any event, such transfer order issued on 25.06.2011 having been specifically not cancelled by the Director-in-chief by his order contained in letter dated 17.10.2012, issued after 16 months of the transfer order of the petitioner cannot be held to be invalid and/or illegal. In fact the Director-in-chief of Health Services has himself mentioned that only such transfer order of Assistant Director, Patna High Court CWJC No.21614 of 2012 (2) dt.13-12-2013 5 Health Services (Filaria Control), Bihar Patna shall stand cancelled which have not been implemented. Such vague cancellation order of transfer of the Director-in-chief without specifically cancelling transfer noting of the petitioner dated 25.06.2011, in no view of the matter can be read to be a declaration that the Assistant Director, Health Services (Filaria Control), Bihar Patna had been vested with no power to transfer. The issue can be examined even from another angle, inasmuch as, the petitioner having been relieved from Bhagalpur by order dated 16.11.2011 for his joining at Purnea did not report at Purnea for almost next three months on the ground of his illness and went to join at Purnea on 18.2.2012 by way of compliance of the transfer order dated 25.06.2011. Thus the moment the petitioner had himself sought to comply the transfer order he cannot claim that the aforesaid order was without jurisdiction and/or was not implemented till 17.10.2012 so as to draw benefit of the order of Director-in-Chief of the Health Services. The plea of the learned counsel for the petitioner that the Civil Surgeon, Purnea had not accepted his joining on 18.2.2012 on account of relieving order of the petitioner dated 16.11.2011 being not issued by the competent authorized authority i.e. the Additional Chief Medical Officer, Bhagalpur as objected to by the Patna High Court CWJC No.21614 of 2012 (2) dt.13-12-2013 6 Civil Surgeon Purnea in his letter dated 18.02.2012 also does not hold any ground, inasmuch as, the said technical plea of Civil Surgeon, Purnea was immediately rectified under the order of Additional Chief Medical Officer, Bhagalpur dated 26.03.2012 affirming the relieving order of the petitioner dated 16.11.2011. Thus if the petitioner had remained unauthorized absent till 17.2.2012 even after his being relieved under the order Filiaria Officer, Bhagalpur dated 16.11.2011 and again from 27.3.2012 despite the affirmance of his being relieved under the orders of Additional Chief Medical Officer dated 26.03.2012, he cannot claim that his order of transfer dated 25.06.2011 also became bad. The net position that emerges is that the petitioner has remained unauthorizedly absent after his being transferred from Bhagalpur to Purnea on 25.06.2011 and relieved on 16.11.2011. Since, the petitioner was relieved w.e.f. 21.11.2011 and did not report on duty at Purnea till 18.02.2012, he will not be entitled for payment of salary unless the aforementioned period is regularized by way of leave on the ground of his illness as sought to be claimed by the petitioner in his joining report submitted at Purnea enclosing the medical certificate of his being ill from 21.11.2011 to 17.02.2012. The petitioner can definitely claim his payment of salary Patna High Court CWJC No.21614 of 2012 (2) dt.13-12-2013 7 for the period from 18.02.2012 to 26.03.2012 when his relieving order was sought to be questioned by the Civil Surgeon, Purnea and clarificatory letter affirming the earlier relieving order of the petitioner was issued by the Additional Chief Medical Officer, Bhagalpur on 26.03.2011. Thus, for this period of 18.02.2012 to 26.03.2012, the petitioner will be entitled for payment of salary because it was not the fault on the part of the petitioner that his joining was not accepted at Purnea in the aforementioned period till the issuance of affirmatory relieving order passed by the Additional chief Medical Officer, Bhagalpur dated 26.03.2012. The position of the petitioner on 27.03.2012 and till date however will be one of being again unauthorizedly absent from duty, inasmuch as, after 26.03.2012, he had to again join his duty in the transferred place at Purnea. Admittedly, he has not done so and has kept on filing his representation for his transfer to Munger on the ground of illness of his mother. The petitioner in fact could have continued with his request for his transfer to Munger on his personal ground but till the said order was passed by the competent authority he had to report for his duty at Purnea. This Court is also not impressed with the submission of learned counsel for the petitioner that the order of transfer of the petitioner dated 25.06.2011 has stood cancelled under the order of Patna High Court CWJC No.21614 of 2012 (2) dt.13-12-2013 8 the Director-in-chief of Health Services dated 17.10.2012, inasmuch as, the said order shows that only such of the transfer order issued by the Assistant Director, Health Services (Filaria Control), Bihar, Patna would stand cancelled which were not already complied. As noted above in the case of the petitioner, the transfer order had already been implemented not only by way of his being relieved from Bhagalpur on 17.11.2011 but also by the confirmatory relieving order issued on 26.03.2012 by the Additional Chief Medical Officer. As a matter of fact when the petitioner also had joined at Purnea on 18.02.2011, he cannot be heard to say that his transfer order dated 25.06.2011 had not been implemented so as to draw the benefit of order issued by the Director-in-chief in his Memo No. 740 dated 17.10.2012. This Court, therefore, does not find any reason to interfere with the transfer order of the petitioner but it would find that since the Director-in-chief of Health Services had issued his orders on 17.10.2012 with regard to cancelling of the unimplemented transfer orders issued by the Assistant Director, Health Services (Filaria Control), Bihar Patna, it would give liberty to the petitioner to file a representation before the Director-in-chief of the Health Services as with regard to his grievance against the order of his transfer dated 25.06.2011. It would be open for the Patna High Court CWJC No.21614 of 2012 (2) dt.13-12-2013 9 Director-in-chief of the Health Services to pass an appropriate order for either continuing with the transfer order of the petitioner at Purnea or give posting to him at any other place keeping in view of the personal difficulty of the petitioner as expressed in his representation seeking his transfer on the personal ground to Munger but for the intervening period of 21.11.2011 to 17.02.2012 and again from 27.03.2012, the petitioner's absence from duty on account of not functioning either at Purnea or at Bhagalpur will be considered as a period of his being absent from duty for which he will not be entitled for any payment of salary. In the event, the Director-in-chief of Health Services would pass a fresh order for his posting anywhere else other than Filaria Control Unit at Purnea, the petitioner would be entitled for payment of salary only from the date of compliance of such order of transfer issued by the Director-in-chief of Health Services. Till it is done so the petitioner must join at Purnea and keep awaiting the decision of the Director-in-chief of Health Services on his representation. The Civil Surgeon, Purnea as also the Filaria Officer, Purnea are also hereby directed to ensure that if the petitioner submits his joining at Purnea, the same may be accepted subject to any decision that may be taken by the Director-in-chief of Health Services on the representation filed by the petitioner Patna High Court CWJC No.21614 of 2012 (2) dt.13-12-2013 10 before him. In case the petitioner files his such representation along with a copy of this order, the Director-in-chief of Health Services must pass his order within a period of one month from the date of filing of the representation by the petitioner as with regard to the place of posting of the petitioner as also for regularizing the period of absence of the petitioner i.e. from 21.11.2011 to 17.03.2012 and from 27.03.2012 till the date of his joining again at Purnea in compliance of the order of this court. With the aforementioned observation and direction,
Decision
this application is disposed of. Rishi/Ranjan- (Mihir Kumar Jha, J)