Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.24021 of 2013 ====================================================== Dr. Harikishore Singh, Son of Late Badri Narain Singh, resident of village Babhan Kund, P.S. Sarath, District- Deoghar (Jharkhand), presently posted as In-Charge Medical Officer, Referral Hospital-Cum-Primary Health Centre, Forbisganj Araria, Bihar Versus .... .... Petitioner/s 1. The State of Bihar 2. The Principal Secretary, Health and Family Welfare, Government of Bihar, Patna 3. The Regional Deputy Director, Health Services, Purnea Division, Purnea 4. The District Magistrate, Araria 5. The Civil Surgeon-Cum-Chief Medical Officer, Araria 6. Dr. Jai Narain Prasad, Medical Officer, Primary Health Centre, Forbisganj 7. Treasury Officer, Sub Treasury Forbesganj, Dist. Araria .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mrs. Asha Verma, Advocate. For the Respondent/s : Mr. Nawal Kishore Singh, S.C. 2 Mrs. Mohini Kumari, A.C. to S.C. 2 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 3 18-12-2013 Heard learned counsel for the petitioner. No one appears for the State or even for the respondent no. 6 though a Vakalatnama was filed on behalf of the respondent no. 6. The grievance of the petitioner is primarily against an order dated 04.11.2013, whereby and whereunder the respondent no. 6 has been restored on the post of Incharge Medical Officer in the Primary Health Centre at Forbisganj and to that extent it would be also useful to quote the relevant portion of the prayer in the writ application which reads as follows:- "For quashing of the order dated 4.11.2013 vide memo no. 19/13 passed by the Respondent no. 5 as contained in annexure-1 to this writ petitioner by which the Respondent no. 5 the Civil Surgeon-cum- 2
Legal Reasoning
Patna High Court CWJC No.24021 of 2013 (3) dt.18-12-2013 2 / 6 Chief Medical Officer, Araria has issued an official order and made the respondent no. 6 as In-charge Medical Officer as well as drawing and disbursing officer of Referral Hospital-cum-Primary Health Centre Forbisganj and has illegally vested entire financial powers to him (in the garb of a letter of District Magistrate, Respondent no. 4) after superseding the order of the Regional Deputy Director, Health Services Purnea Division. The Respondent no. 3 on 12.4.2012 vide memo no. 51 as contained in Annexure-2 by which the petitioner was made In-charge Medical Officer, Referral Hospital- cum-Primary Health Centre Forbisganj for the reasons well mentioned in the annexure-2 itself and the same forms the part of C.W.J.C. No. 13405/12 as annexure-14 in a promotion matter filed by the Respondent no. 6 and the matter is pending before this Hon'ble Court for adjudication, so the Respondent no. 5 had no authority to pass any order in this regard when the matter is subjudice before this Hon'ble Court nor the Collector of the District had the power to decide the matter of seniority and promotion. And Further for quashing of repeated and consequential order vide memo no. 1967 dated 14.11.13 and unilateral charge report dated 14.11.13 as contained in annexure-3 and 4 of this writ application as it is the part and partial of annexure-1 and the petitioner should not be disturbed illegally, 3 Patna High Court CWJC No.24021 of 2013 (3) dt.18-12-2013 3 / 6 arbitrary and in unauthorized manner."
Legal Reasoning
Mrs. Asha Verma, learned counsel for the petitioner, in support of aforementioned prayer has explained that though after full consideration by the Regional Deputy Director of Health, Patna he had passed an order dated 12.04.2012 displacing the respondent no. 6 from the post of Incharge Medical Officer in the Primary Health Centre, Forbisganj by assigning duty of the said post to the petitioner, but by the impugned order passed after one and half year by the Civil Surgeon-cum-Chief Medical Officer, Araria, position has been reversed and the petitioner has been deprived of the assignment on the post of Incharge Medical Officer, Forbisganj. She has, in this regard, also relied upon a resolution of the Health Department dated 05.10.2006, to contend that such order passed by the Regional Deputy Director of Health, Purnia was well within his jurisdiction and to that extent she relies on Paragraph 1(vi) of the said resolution which reads as follows: ^^ fcgkj ljdkj LokLF; ,oa i0 d0 foHkkx ladYi LokLF; ,oa i0d0 foHkkx ds v/khu ds {ks=h; inkf/kdkfj;ksa dks foHkkxh; dk;Zdzeksa ds lapkyu fu;a=.k ,oa i;Zos{k.k ds fufer mudh ’kfDr;ksa] nkf;Roksa ,oa d‘R;ksa dk fu/kkZj.k fuEuor fd;k tkrk gS& dzekad inuke ’kfDr;ksa] nkf;Ro ,oa d‘R; 1 {ks=h; mi funs’kd …i‰ --------------------------------------------------------------------------------------- …ii‰ -------------------------------------------------------------------------------------- …iii‰ --------------------------------------------------------------------------------------- …iv‰ --------------------------------------------------------------------------------------- …v‰ --------------------------------------------------------------------------------------- …vi‰ vlSfud ’kY; fpfdRld lg eq[; fpfdRlk inkf/kdkjh] vij eq[; fpfdRlk inkf/kdkjh] ftyk Lrjh; jk"Vzh; dk;Zdzeksa ds izHkkjh inkf/kdkjh] mik/kh{kd lfgr lHkh v/khuLFk jktif=r inkf/kdkjh ,oa fpfdRlk inkf/kdkjh ls Li"Vhdj.k iwN dj ;Fkk izfdz;kuqlkj y?kq naM ns ldsaxs rFkk ,sls lHkh inkf/kdkfj;ksa dks 4 Patna High Court CWJC No.24021 of 2013 (3) dt.18-12-2013 4 / 6 o‘gn~ naM nsus dh vuq’kalk dj ldsaxsA ,sls lHkh inkf/kdkfj;ksa dh 4 ekg ddh vukf/kd‘r vuqifLFkfr dks ;Fkk izfdz;k bl ’kRrZ ds v/khu voSrfud ?kksf"kr dj ldsxs fd mDr vof/k ds fofu;eu ds ckjs esa vfUre fu.kZ; LokLF; foHkkx ls gksxkA** In the considered opinion of this Court, the reliance placed on the aforementioned resolution of the Government with reference to the delegation of power to Regional Deputy Director of Health, is wholly misplaced. By the said delegation of power although the Regional Deputy Director, Health has been empowered to pass any order of minor punishment against the Medical Officers posted in the Division, the order which was passed by the Regional Deputy Director of Health dated 12.4.2012, vide Annexure-2, is definitely not an order of minor punishment inasmuch as it has been held therein that since the respondent no. 6 has already completed the age of superannuation he will no longer continue in service. If the implication of the said order is taken into account, it will actually amount removal of the respondent no. 6 from service and thus definitely not a minor punishment. As a matter of fact, had Regional Deputy Director of Health come to such a finding that the respondent no. 6 was not entitled to continue in service on account of completion of age of superannuation and yet he was continuing in service by making any fraud or misrepresentation, it was only open for the Regional Deputy Director of Health to refer the matter to the State Government or any authority competent to remove a person working on the post of Medical Officer held by the respondent no. 6. It is however not in doubt that the competent authority to remove the Respondent no. 6 and the petitioner is none else but the State Government itself. This Court, on perusal of Annexure-1, the impugned 5 Patna High Court CWJC No.24021 of 2013 (3) dt.18-12-2013 5 / 6 order passed by the Civil Surgeon, would find that the post of Incharge Medical Officer has been filled up on the basis of seniority wherein respondent no. 6 has been shown at Sl. No. 3900 as against the petitioner being at Sl. No. 4064. Normally this could have been sufficient for this Court to negate the claim of the petitioner inasmuch as the post of Incharge Medical Officer in a Primary Health Centre in the normal circumstances has to be essentially to be given to the senior-most Medical Officer posted in that Primary Health Centre. The order of the Regional Deputy Director of Health, as contained in Annexure-2, by which the respondent no. 6 was stripped of his power of the post as Incharge Medical Officer refers to certain discrepancy in the gradation list and there being two persons of the same name of Dr. Jai Narayan Prasad and the respondent no. 6 claiming proximity of that Jai Narayan Prasad. Essentially, this would require more verification which may be done only at the stage of the State Government which maintains the gradation list. In that view of the matter, this Court, for the time being without interfering with the impugned order, as contained in Annexure-1 passed by the Civil Surgeon-cum-Chief Medical Officer, Araria authorizing the respondent no. 6 to work as Incharge Medical Officer, would direct the Principal Secretary of the Health Department to examine the grievance of the petitioner and take a firm decision within a period of one month from the date of receipt/production of a copy of this order. If the petitioner, therefore, files his representation with supporting documentary evidence as also enclosing a copy of this order, the Principal Secretary, Health Department having obtained the comment from both, the Regional Deputy Director of Health as also the Civil Surgeon-cum-Chief Medical Officer, Araria and the petitioner will do needful to resolve this issue 6 Patna High Court CWJC No.24021 of 2013 (3) dt.18-12-2013 6 / 6 relating to holding of the post of Incharge Medical Officer in the Primary Health Centre, Forbisganj, within the aforementioned period of one month. The submission of learned counsel for the petitioner that for the time being operation of Annexure-1 should be stayed and some one else other than petitioner should be made Incharge Medical Officer in the aforementioned Primary Health Centre, Forbisganj is not acceptable to this Court specially when such an interim order was also not passed while issuing rule on 04.12.2013. With the aforementioned observation and direction,
Decision
this writ application is disposed of. Sujit/- (Mihir Kumar Jha, J)