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1992 DIGILAW 34 (KER)

Suhara Beevi v. State of Kerala

1992-01-28

SREEDHARAN

body1992
Judgment :- When C.M.P. 22918/1991 came up for orders, learned counsel representing the petitioner and the learned Advocate General wanted to have the Original Petition itself heard and disposed of. Accordingly, I heard them at length. I am disposing of the Original Petition. 2. Petitioner is the seniormost doctor in the Health Services Department. When Dr. P. Indira, Director of Health Services (IPP & FW) was posted as Director of Health Services (M & PH) on the retirement of her predecessor in office Sri. K.A. Kesavan, petitioner, Additional Director of Health Services (PH) was provisionally promoted- as Director of Health Services (IPP & FW), as per Exhibit P1 order dated 5-1-1991: When Dr. P. Indira retired on superannuation on 31-1-1991, petitioner was posted on a regular basis as Director of Health Services (M&PH), as per Exhibit P4 order dated 31-1-91. It is conceded before me that the post of Director of Health Services (M & PH) is the administrative head of the Department. From Exhibits P1 and P4 orders, it is evident that the Senior Director of Health Services is posted as Director of Health Services (M & PH). While Petitioner was functioning as the Head of the Department, by holding the post of Director of Health Services (M & PH), Government issued Exhibit P15 order dated 3-12-1991 purporting to be a re-arrangement of the work among Directors and Additional Directors of Health Services Department. As a result of this, petitioner is put in charge of Family Welfare and Indian Population Project. Petitioner challenges this so-called re-arrangement of work. 3. Bereft of unnecessary materials, the short question that arises for consideration is whether petitioner, who was found to be the Senior Director of Health Services and posted as Director of Health Services (M & PH), is to be put in charge of Director of Health Services (IPP & FW). 4. Petitioner was holding the post of Director of Health Services (IPP & fw) when Dr. P. Indira, the then Head of the Department, retired from service on superannuation. Consequently, by Exhibit P4 order, Government posted the petitioner as Director of Health Services (M & PH). After having appointed her as Director of Health Services (M&PH), i.e., the Head of the Department, she is now divested of the power as the Head of the Department, as per Exhibit P15 order. Consequently, by Exhibit P4 order, Government posted the petitioner as Director of Health Services (M & PH). After having appointed her as Director of Health Services (M&PH), i.e., the Head of the Department, she is now divested of the power as the Head of the Department, as per Exhibit P15 order. Eventhough the government has taken the stand that petitioner's salary is protected, since she is divested of the duties as the Head of the Department, I have no hesitation in holding that by Exhibit P15 order petitioner has been reduced in rank. This reduction of rank has been effected not as a result of any disciplinary action initiated against her. 5. I requested the learned Advocate General to give an instance when an officer who was holding the post of Director of Health Services (M & PH) has been divested of that duty and assigned the duties of Director of Health Services (IPP & FW). Learned Advocate General has not placed any such instance. In 1983, a second post of Director of Health Services was created. Two posts of Directors of Health Services were known by the names Director of Health Services (M & PH) and Director of Health Services (IPP&FW). Director of Health Services (M&PH) was having the administrative control over the officers in the Department. The person who held the post was considered as the Head of the Department. At no point of time an officer who was posted as Director of Health Services (M & PH) was divested of that duty and placed as Director of Health Services (IPP & FW). Instance have been mentioned about the appointment of junior among the two, as director of Health Services (M & PH). While Dr. S. Indira' was director of Health Services (IPP & FW) from 1-5-1987 to 31-3-1988, her junior Dr. Vijayalakshmy Menon was appointed as Director of Health Services (M & PH) on 30-11-1987. Similarly while Dr. C.S. Indira Devi was holding the post of Director of Health Services (IPP & FW), her junior Dr. V. Rugmini was appointed as Director of Health Services (M & PH)- On this basis, it is contended on behalf of the respondents that petitioner being the senior-most Doctor, cannot claim the post of Director of Health Services (M & PH). I do not find any merit in this contention. V. Rugmini was appointed as Director of Health Services (M & PH)- On this basis, it is contended on behalf of the respondents that petitioner being the senior-most Doctor, cannot claim the post of Director of Health Services (M & PH). I do not find any merit in this contention. The post of Director of Health Services (M & ph) is one to be filled by selection. Government while selecting the incumbent, can prefer the junior, who is demonstrably superior to the senior who is holding the post of Director of Health Services (IPP & FW). But, a person who has been regularly selected and posted as Director of health Services (M & PH), as in the case of the petitioner, is not to be divested of the power as the administrative head of the Department. 6. When Dr. V. Rugmini was posted as Director of Health Services (M & PH) overlooking the claims of Dr. C.S. Indira Devi, who was functioning as Director of Health Services (IPP & FW), Dr. C.S. Indira Devi raised objection. That objection was dealt with by Exhibit P21 order. That order makes it clear that the contingency to appoint Dr. V. Rugmini as Director of Health Services (M & PH) occured only on account of petitioner having availed commuted leave, Dr. V. Rugmini was to retire from service on superannuation on 31-8-1991. Even then Dr. Rugmini was not paid the higher scale of pay of Rs. 4435-5285. That scale of pay was granted to Dr. C.S. Indira Devi for the period from 1-8-1991 to 31-8-1991. All these go to show that the post of Director of Health Services (M & PH), is the post of the Head of the Department and that it is usually given to the senior-most Additional Directors of Health Services. 7. By Exhibit P4 order, petitioner was regularly appointed as the head of the Department. For no justifiable reason, she is now reverted back to the post held by her prior to Exhibit P4 order, as a consequence of Exhibit P15, the impugned order, dated 3-12-1991. I find it'difficult to sustain the same. That order spells out arbitrariness. It is v, ell established proposition of law that arbitrariness is antithesis of fair play in Government actions. I find it'difficult to sustain the same. That order spells out arbitrariness. It is v, ell established proposition of law that arbitrariness is antithesis of fair play in Government actions. Viewed in this light, I quash Exhibit P15 order, in so far as it directs the petitioner to take up the duty as Director of Health Services (IPP & FW). 8, Since arguments have been addressed on the functioning of the second respondent, which according to the petitioner have given rise to Exhibit P15 order, I think it necessary to make a passing reference to those matters. It is the petitioner's case that Exhibits P8, P10, Pll and P12 lists were handed over to her by the Assistant Private Secretary to the second respondent for effecting transfers of Assistant Surgeons and other members of the staff of the Health Services Department. Second respondent has virtually disowned those lists. Consequently those lists cannot be treated as lists sent by the Minister for effecting orders of transfer. One such list has leaked out and reached the media. It was published in one of the daily news papers. The publication of that list cannot in anyway be treated as publication of a secret communication from the Government to the Head of the Department because neither the Minister nor the Government owns it. In the counter affidavit filed by the Minister, it is averred. "Infact, the second respondent, as a representative of the people, as a Minister of the Department, is bound to hear the grievances of the public, including the employees of the Department. Under these circumstances, on getting representations and complaints, as a Minister, one will have to apply the mind and issue orders according to the feasibility, availability of vacancies and other grounds which are necessary, depending upon the exigencies of administration. Under these circumstances, on receipt of representations, lists are being prepared for posting, transfers and other appointments in this regard. As a Minister and the Head of the Port-folio, for the General Administration of the Department, no formal orders with signature and seal are insisted on and such a technical plea will only embargo the speedy measures which are intended to be taken by the Minister". A Minister, as the elected representative of the people, is entitled to hear the grievances of the public and take steps to redress their grievances. A Minister, as the elected representative of the people, is entitled to hear the grievances of the public and take steps to redress their grievances. For the said purpose, he is entitled to give directions to the subordinate officers and Heads of Departments as provided in the Rules of Business of the Government of Kerala. The Heads of Departments are to implement those directions. If the directions issued by the Minister are found to be unworkable or will create hardship to others, it will be the duty of the Head of the Department or the subordinate officers, as the case may be, to bring that fact to the notice of the Minister and to get his orders and directions modified accordingly. As per Rules of Business of the Government of Kerala the Minister in charge of the department shall be primarily responsible for the disposal of the business appertaining to that department. All orders made or issued on behalf of the Government of the State shall be expressed to be made in the name of the Governor. Every order of the Government shall be signed by a Secretary, an Additional Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary or by such other officer as may be specifically empowered in that behalf. Such signature shall be deemed to be the proper authentication of the order of Government. Government cannot issue any order without proper authentication. An order without proper authentication has no legal validity. Such an order is not to be treated as an order of Government binding on any one. Decision taken by the Minister will acquire the quality of an order of Government only when it is embodied in a formal order issued on the authority of the Governor. Even a noting made by Minister is not an order of Government. The learned Advocate General appearing in the case did not advance any argument to the contrary. Nor did he try to support the stand of the Minister as seen in the counter affidavit. The Minister, if he wants to give any directive to the Head of the Department or his subordinate officer, in order to redress the -grievance of the public or the employee of the Department, must issue written orders in conformity with the provisions contained in the Rules of Business of Government. The Minister, if he wants to give any directive to the Head of the Department or his subordinate officer, in order to redress the -grievance of the public or the employee of the Department, must issue written orders in conformity with the provisions contained in the Rules of Business of Government. Petitioner, as Head of the Department, is bound to comply with the directions given by the Minister, as seen in orders issued in conformity with the Rules of Business in Government. I do not propose to pursue the matter further on the facts and circumstances of this case, since Exhibits P2, P10, P11 and P12 are not orders of Government and the Minister has not owned any responsibility for their issue. They are not binding on the petitioner. I do not place any reliance on the petitioner's contention that second respondent entertains an ill-feeling towards her in not carrying out the directions made in the above lists. Be that as it may, I state that the petitioner has been sought to be replaced from the position of the head of the department for no justifiable reason. So, it has to be interfered with. Original Petition is disposed of by quashing Exhibit P15 order in so far as it relates to the petitioner. Petitioner will continue to function as Director of Health Services (M & PH). Issue photo copy of the judgment to the parties on usual terms.