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Patna High Court · body

2001 DIGILAW 174 (PAT)

Ram Shankar Jha v. State Of Bihar

2001-02-22

SHIVA KIRTI SINGH

body2001
Judgment 1. The petitioner, a Professor and Head of the Department of Pathology, Patna Medical College Hospital, Patna has filed this writ application to seek quashing of part of an order dated 9.11.2000 contained in Anneuxre-8 by which he has been transferred from Patna Medical College Hospital to Jawahar Lal Nehru Medical College, Bhagalpur. Though by order contained in Anneuxre-8 five more Professors/Associate Professors have been transferred from one Medical College to another but since there are not chain transfer and petitioner has no concern with other transfers hence the transfer of other five persons is not in question in this writ application. 2. Counter affidavits, supplementary counter affidavits as well as rejoinders to such counter-affidavits have been filed and after hearing the parties in detail on various dates this writ application is being disposed of finally at the stage of admission itself. 3. The case of the petitioner is that he is a Professor of Pathology in Patna Medical College since 1991. He is the only recepient of Common Wealth Fellowship in Pathology in Bihar and acquainted with the latest Pathology technique. He is senior most teacher for post graduate course in the department of pathology in whole of the State of Bihar. Post-graduate courses in pathology are conducted in Patna Medical College but not at Jawahar Lal Nehru Medical College, Bhagalpur. 4. The aforesaid facts are not in dispute. However, the petitioner has further pleaded several facts in order to challenge the impugned order of transfer. It will be appropriate to deal with such facts while dealing with different grounds of such challenge as urged by learned counsel for the petitioner. First of all the petitioner has alleged personal malafide against respondent no. 2, the Secretary, Medical Education and Family Welfare, Bihar, Patna who has been made respondent by name. In this regard petitioners case is that some students of his department including one Yasmin Rahman were not sent up due to short-fall in attendance and poor marks obtained by them in the Internal Assessment Examination. The Principal of the College directed for holding extra classes for such students so that they could make up the short-fall in their attendance. Petitioner wanted some clarification in this matter on the basis of M.C.I. Rules and thereupon he was called by the Principal, respondent no. 5 in his chamber for discussion. The Principal of the College directed for holding extra classes for such students so that they could make up the short-fall in their attendance. Petitioner wanted some clarification in this matter on the basis of M.C.I. Rules and thereupon he was called by the Principal, respondent no. 5 in his chamber for discussion. In paragraph 14 of the writ application it was mentioned that respondent no. 2 had called the petitioner in his chamber for discussion but through a supplementary affidavit a correction was made and it was stated that respondent no. 2 was wrongly typed in place of respondent no. 5 due to clerical/typographical error. According to petitioner respondent no. 5 gave out that Yasmin Rahman is a close relation of respondent no. 2 and if she is not sent up respondent no. 2 will take serious view of the matter. Some further correspondence followed and although the petitioner ultimately arranged for extra classes but his rigid stand in the matter caused annoynace to respondent no. 2 and hence at his instance the petitioner was penalised by way of transfer. 5. With regard to aforesaid allegations, both respondent no. 2 and respondent no. 5 have filed counter affidavits denying the allegations that Yasmin Rahman was in any way related to respondent no. 2. They have denied that they acted on any such ground. Respondent no. 5 categorically denied to have disclosed relationship of respondent no. 5 with any student. According to him the direction for holding extra classes was routine letter of general nature issued to all the Heads of Departments. 6. A perusal of Annexure-2 shows that in the last paragraph there is specific mention of two girl students of Pathology Department but the letter is addressed to all the Heads of the Departments and contains general instructions for arrangement of extra classes for the students who were not sent up with 1996 Batch. This was followed by correspondence from the petitioner and the Principal contained in Anneuxres 3, 4 and 5 and the notice issued by the petitioner on 20th October, 2000 (Annexure-6) shows that he notified for holding extra classes for Yasmin Rahman and another student. However, considering specific denial of alleged relationship as well as of other related allegations by respondent nos. 2 and 5, it is not possible to accept the allegations of personal malafide alleged against respondent no. 2. However, considering specific denial of alleged relationship as well as of other related allegations by respondent nos. 2 and 5, it is not possible to accept the allegations of personal malafide alleged against respondent no. 2. On going through the relevant materials on the aforesaid aspect this court came to an opinion that legal and strict view adopted by the petitioner in the matter of sending up students for examination was not to the liking of the Principal but thereafter the materials are insufficient to enable this Court to come to a positive finding that there was any play of personal malafide against the petitioner in making of the impugned order of transfer. 7. The next ground urged on behalf of petitioner was in the nature of malafide in law. For this learned counsel for the petitioner relied upon Annexure-11 an order of this court dated 31st August, 2000 passed in different writ application bearing C.W.J.C. No. 4079/1998. From the said order it was shown that during personal presence of respondent no. 2 in court this court noticed the stand of the State Government that certain Rules including Rule 11 which contains provisions for transfer of teachers of Medical Colleges were under contemplation for amendment within three months time. During this time options had to be invited through newspapers for absorption in teaching cadre in terms of Bihar Medical Education Service cadre and appointment to its cadre post Rules 1997. It was further mentioned in the order on the basis of statement of the Secretary that in the meantime, on the basis of existing rule some of the promotion posts may be filled up. It was submitted, on the basis of aforesaid facts and stand of the State Government as noticed in Anneuxre-11 that some of the Rules including Rule-11 providing for transfer of teaching cadre was admitted to be not satisfactory as late as on 31 st August, 2000. The proposed amendment was expected to be done within three months during which absorption in the teaching cadre was to be completed and only certain promotions were proposed to be made on the basis of existing rule. In such a situation, by necessary inference no exercise of transfer under the existing rule 11 of the aforesaid rule 1997 was to be carried out. In such a situation, by necessary inference no exercise of transfer under the existing rule 11 of the aforesaid rule 1997 was to be carried out. An earlier order of this court dated 4.1.2000 passed in the aforesaid C.W.J.C. No. 4079 of 1998 was also highlighted to show that prior to 1997 Rules posting against teaching posts used to be made on the basis of merit- cum-choice and in the 1997 Rules there was no indication as to on what basis subsequent transfers would be made on completion of five years period. In the said order it was also noticed that in some Medical Colleges such as Patna, Darbhanga and Ranchi Post-graduate courses are conducted which are not in other Medical Colleges. The Rules of 1997 contain no provision to take care of this fact and how to look after the interest of post-graduate students so that their teaching through teachers qualified to take post-graduate classes is not adversely affected. On this basis it was argued that the petitioner being most experienced post-graduate teacher, his transfer would not only affect the teaching in post-graduate classes at Patna but at the same time his qualification and experience for post-graduate teaching would be an absolute waste at Bhagalpur where no post-graduate courses in Pathology are in existence. According to petitioner such relevant aspect was not taken into consideration while making the impugned transfer. 8. On the basis of directive of the Central Govt. dated 13.9.2000 (Annexure- 9) and the consequent circular letter of the Bihar Government dated 24th September, 2000 (Annexure-10) it was next contended on behalf of petitioner that in terms of directive of the Central Government under statutory provisions of Bihar Re-organisation Act, 2000 duly accepted by the State of Bihar, all transfers (other than local area personnel) were required to be held in abeyance till re-organisation of State is effected. Petitioners grievance is that although petitioners transfer was covered by the aforesaid directives of the Central Government but yet the respondents proceeded in the matter in utter violation and disregard of such directions. On this account also the impugned order of transfer has been challenged as arbitrary and illegal. 9. It was next contended that Establishment Committee which was convened to consider the impugned transfer on 25.10.2000, as would appear from minutes of the said committee contained in Annexure-7 consisted only of respondent no. On this account also the impugned order of transfer has been challenged as arbitrary and illegal. 9. It was next contended that Establishment Committee which was convened to consider the impugned transfer on 25.10.2000, as would appear from minutes of the said committee contained in Annexure-7 consisted only of respondent no. 2 and of a Deputy Secretary and an Additional Director. Petitioners grievance is that the Departmental Establishment Committee was not constituted as per rules of Executive Business which required participation of atleast the senior most head of the department such as the Director-in-Chief or in his absence the Director, Health Services. Such meeting was allegedly convened in a hurry without any previous notification and without any information to anybody. Although respondent no. 2 denied such allegations in paragraph-15 of his counter affidavit but further facts asserted by the petitioner in this regard in paragraph 14 of his rejoinder were not denied. On this issue no further deliberation is required in view of facts emerging from the records produced before this court which clearly disclose that there were no notings by any officer or employees at any level for the proposed transfer of the petitioner nor any agenda was set out for the Establishment Committee which allegedly met on 25.10.2000 nor there is any file to show that the decision to held such a meeting on 25.10.2000 was communicated to the members in advance. Hence it has to be held that the Departmental Establishment Committee was convened in a haste without proper notice and agenda for the meeting dated 25.10.2000, 10. The next contention of learned counsel for the petitioner was that there was no ground or justification for transfer of the petitioner and the reasons mentioned for such transfer that it was being done on account of objection by the Medical Council of India with regard to various Medical Colleges in the State, and in the interest of work and for administrative reasons are totally without any substance. According to petitioner such reasons did not exist for his transfer nor such reasons were considered. This view has been reiterated on behalf of petitioner in spite of assertion to the contrary by respondent no. 2 and in spite of strong reliance placed by the learned counsel for the State upon Annexure-A as a main reason and basis for transfer of petitioner to Bhagalpur. This view has been reiterated on behalf of petitioner in spite of assertion to the contrary by respondent no. 2 and in spite of strong reliance placed by the learned counsel for the State upon Annexure-A as a main reason and basis for transfer of petitioner to Bhagalpur. On behalf of petitioner it was submitted on the basis of a report of Medical Council of India dated 24.6.1999 (Annexure-1) that teaching at Patna Medical College in the department of Pathology where the petitioner was Head was being conducted properly. On the basis of another report of M.C.I. of March, 1997 (Annexure-13) which relates to Medical College at Bhagalpur, it was submitted that even prior to 1997 there was a vacancy in the post of Professor of Pathology at Bhagalpur and one doctor who was posted there earlier as Professor, Head of Department of Pathology did not join. By Annexure 12/1 dated 14.5.97 another doctor (Smt.) Raj Kumari was posted as Professor at Bhagalpur but she also did not join. On these materials it was contended that there was no urgency in the matter as the respondents had permitted such vacancy at Bhagalpur since long. In further support of this stand it was pointed out on the basis of Annexure-16 that D.C.P. was de-recognised at Ranchi Medical College on 1.3.2000 due to non-filling up of a post of Professor in Pathology but no action was taken to remove this deficiency. On the basis of Anneuxre-14 it was submitted that two persons were found fit by the Bihar Public Service Commission for appointment as Professors in Pathology but in spite of publication of result in April, 2000 the successful persons were not appointed during last seven months and petitioner was transferred to Bhagalpur in November, 2000 only on the pretext of filling up the post of Professor by wrong reliance upon Annexure-A to make out a case for urgent transfer on the ground of objection of M.C.I. and interest of work. 11. On the other hand, learned Additional Advocate General No. II appearing for the State and respondents Officials strongly refuted the allegation of personal malafide as already noticed earlier and also placed strong reliance upon Annexure-A, a letter from M.C.I. dated 4.10.2000 to submit that the M.C.I., on the request of the State Government had granted only three months time for removing deficiency in the inspection report of March, 1997. According to him in view of limited time available as per Annexure-A, urgent steps were found necessary to be taken for removing the deficiency at Bhagalpur Medical College. It was for that reason alone that the petitioner was transferred to fill up the vacant post of Professor in the department of Pathology in Jawaharlal Nehru Medical College, Bhagalpur. He next contended that there could be no extraneous consideration or mafafide in law in passing the impugned order because it related not only to the petitioner but five other persons as well. 12. With regard to submission on behalf of petitioner regarding proposed amendment of Rule 11 relating to transfer of teacher in Medical Colleges he submitted that no amendment had been brought out as yet but none the less the Government had the power to transfer teachers governed by the 1997 rules. Regarding ban on transfers by virtue of directives of the Central Government and the State Government contained in Annexures 9 and 10, it was submitted on behalf of State that such a ban would be operative only after Re-organisation of State began on 15.11.2000. 13. At this stage it is relevant to notice that an interlocutory application being I.A. No. 11/2001 was filed on behalf of one Dr. S.B. Pandey with a prayer for being added as an intervenor respondent and for being heard in opposition to the writ application. He has claimed that as a result of transfer of the petitioner to Bhagalpur, being the next senior Professor in the department he has taken over as incharge head of the Pathology department on 20th November, 2000 and therefore he will be adversely affected if the impugned transfer is quashed. Although no final order was passed on this I.A. and learned counsel for the intervenor as per his submissions was heard on some of the questions of law only, now it has to be decided whether prayer of an intervener for being added as a party respondent is fit to be allowed or not. Admittedly the intervenor has not been transferred to his present post by the impugned order. He was working as another professor in the department under the petitioner from before and simply because petitioner has been transferred, the intervenor is now acting as head of the department. Admittedly the intervenor has not been transferred to his present post by the impugned order. He was working as another professor in the department under the petitioner from before and simply because petitioner has been transferred, the intervenor is now acting as head of the department. In such circumstances, the intervenor cannot be treated as necessary or even as a proforma respondent and it would not be proper to allow his prayer for being added as an intervenor party respondent. Accordingly the prayer made in T.A. No. 11/2001 is rejected. However, since learned counsel for intervenor was heard on some questions of law hence for the sake of fairness his submissions are noticed in brief. According to intervenor Rule 11 of the 1997 Rules provides for transfer after five years and hence no writ can be issued to obstruct implementation of such a rule. It was next submitted that even if the transfer is against the guidelines of the Central Government and the Circular of the State Government, according to law laid down by the Apex Court in the case of Mrs. Shilpi Bose V/s. State of Bihar reported in 1991 (1) PLJR (SC) 61, such violation of executive instruction or orders would only entitle the petitioner to make a representation before the higher authority in the department. Lastly it was submitted that in view of a Full Bench decision of this Court in the case of N. P. Mathur and ors. V/s. State of Bihar reported in 1971 PLJR 471, no interference on the ground of malafide can be made on infirm and insufficient ground of malafide. The last submission requires no consideration in view of finding given earlier by which allegations of personal malafide have not been accepted in this case. So far as the first ground is concerned, it is not the case of the petitioner that the respondents do not have a power to transfer but his case is that such power is being exercised in a wrong and improper manner and against the statutory directives of the Central Government issued under the provisions of Bihar Re-organisation Act, 2000. A power of transfer contained in rules or available otherwise is merely enabling power which may or may not be availed of depending upon several facts and circumstances. A power of transfer contained in rules or available otherwise is merely enabling power which may or may not be availed of depending upon several facts and circumstances. It has been well settled by several judgments of the Apex Court including one in the case of Union of India V/s. H. N. Kirtania, (1989) 3 SCC 445 which was relied upon by the learned counsel for the intervenor that an order of transfer is not open for interference unless it is found to be malafide, illegal or in violation of statutory rules. The submission that no writ can be issued because there is a rule providing for transfer cannot be accepted. Only where a rule mandates a particular act to be done in the particular manner, as a general rule, writ will not be issued to obstruct or frustrate the mandate of such rule unless the rule is itself found to be ultra vires. A rule enabling transfers cannot be construed to contain such a mandate. A transfer if found bad on account of malafide or on other illegality cannot be saved only because there is a rule enabling the authority to transfer the concerned employee. 14. The other submission on behalf of intervenor that the department was required to generally transfer doctors on account of long posting at one place in view of some observations of this Court in other cases has not been adopted by the respondent-State and rightly because such an exercise would call for general chain transfer of all similarly situated employees of the Health Department whether in teaching cadre or other cadres. Admittedly no such exercise has taken place with regard to teachers in Medical Colleges. The only other contention on behalf of intervenor is based upon presumption that the directive of the Central. Government contained in Annexure 9 is executive or administrative in nature. This presumption does not appear to be correct in view of provisions in section 76 of the Bihar Re-organiation Act, 2000 which vests the Central Government with the power to give such directions to the State Government of Bihar and the State of Jharkhand as may appear to it necessary for the purpose of giving effect to the provisions in part VIII of the Act which contains provisions relating to All India Services as well as to Services in Bihar and Jharkhand. Hence it is found that the directions contained in Annexure- 9 have statutory base. This disposes of all the contentions advanced on behalf of Dr. S. B. Pandey whose intervenor application, as discussed earlier was not found fit to be allowed. 15. Coming to the second contention urged on behalf of petitioner alleging malafide in law, from the rival contentions already noticed earlier there appears to be sufficient force in the submissions urged on behalf of the petitioner. From orders of this Court dated 31.8.2000 (Annexure-11) and 4.1.2000 (Annexure- 15) it does appear that there was an admission by respondent no. 2 regarding possible lacunae in the 1997 rules including Rule 11 concerning transfer of teaching cadre and for atleast three months from 31.8.2000, only certain promotions were proposed to be made during that period under the 1997 rules. Petitioners transfer has been ordered before the expiry of period of three months noticed above. It is further found that at the time of petitioners transfer the directives of the Central Government dated 13.9.2000 (Annexure-9) had already been implemented vide circular letter of Bihar Government dated 24th September, 2000 (Annexure- 10). On perusal of the entire directives circulated vide Annexure-9 which was made available by the parties at the time of hearing, specially from clause 7 and Annexure-B to the directives it is clear that the directives are meant to be operative from before 15.11.2000 the appointed date marking bifurcation of erstwhile State of Bihar. Many of the directives require prior steps to be taken by the authority concerned and hence this Court finds no merit in the contention advanced by learned A.A.G. II on behalf of respondents that the directives contained in Annexures 9 and 10 would be operative only from 15.11.2000. For the purpose of this case and considering the other grounds urged on behalf of petitioner this Court does not find it necessary to decide whether ban imposed upon all transfers (other than local area personnel) which admittedly includes the impugned transfer, as per clause (5)(d) of directives contained in Annexure-9 is mandatory or not. For the purpose of this case it is sufficient to notice that this directive which was enforced at the relevant time was not kept under consideration by the respondents while passing the impugned order of transfer. 16. For the purpose of this case it is sufficient to notice that this directive which was enforced at the relevant time was not kept under consideration by the respondents while passing the impugned order of transfer. 16. Before considering the other submissions relating to the issue of malafide in law it appears necessary to record that in course of hearing this court asked the learned counsel for the respondents to make available all the relevant files and records concerning the impugned transfer. Only two files and a chart of all the teachers in the department of Pathology relating to the transfer in question were produced and as per order dated 2.2.2001 the said files were kept along with the records of this case and through a supplementary counter affidavit filed on 6.2.2001 respondent no. 2 confirmed the earlier stand that all the relevant files and papers had been produced in court. After going through the relevant records produced by the respondents, it was noticed that the main relevant file which bears the number 17/pt-4/2000 contains only four sheets of papers. First sheet contains minutes of meeting of Establishment Committee held on 25.10.2000 a copy whereof is Annexure-7. The second sheet is a draft of impugned notification whereas the third sheet is the impugned notification dated 9.11.2000 a copy whereof is Annexure- 8. The fourth sheet (two pages) is the entire note-sheet which shows that respondent no. 2 the Secretary endorsed the minutes of the Establishment Committee to the State Minister/Minister on 27.10.2000. The Minister gave his approval on 31.10,2000. Then the file was endorsed to the Chief Secretary on 9.11.2000 who endorsed the same to the Chief Minister on that date. The Chief Minister signed on 9.11.2000. The draft notification was put up before the Deputy Secretary as well as the Secretary on that date itself and the notification of transfer dated 9.11.2000 (Annexure-9) was issued on 9.11.2000. The other relevant file, as claimed by the respondent bears no number and is said to be a folder file which contains no note sheet but only photo-copies of certain letters and charts enclosed with a letter from the Principal, J.L.N. Medical College, Bhagalpur, addressed to respondent no. 2 dated 4.9.2000. The other relevant file, as claimed by the respondent bears no number and is said to be a folder file which contains no note sheet but only photo-copies of certain letters and charts enclosed with a letter from the Principal, J.L.N. Medical College, Bhagalpur, addressed to respondent no. 2 dated 4.9.2000. The chart or the master chart relating to department of pathology, on close analysis appears to have been prepared sometime in October, 1999 and shows the names and details of various categories of teachers of this department posted in all the Medical Colleges in the erstwhile State of Bihar. From the aforesaid records it is clear that the normal procedure of putting up proposals for transfer for consideration by the Establishment Committee was not followed. There were no notings to show how and why the proposal for transfer of the petitioner or for that matter or other five doctors came to be placed before the Establishment Committee. No agenda appears to have been set out for meeting of the Establishment Committee held on 25.10.2000. Strangely, the letter from M.C.I. dated 4.10.2000 (Annexure-A) to the counter affidavit of respondent no. 2 is not to be found in the records. In fact Annexure-A which was sheet anchor of arguments advanced on behalf of respondents to justify the transfer of the petitioner does not appear to have been received by respondent no. 2 or any other official at Panta from the Principal of Bhagalpur Medical College to whom it was sent on 4.10.2000. This state of affairs shows that the stand taken in the counter affidavit to justify departure from the earlier prevalent practice of posting of teachers at a particular place on the principles of merit-cum-choice is an after thought and does not find support from the relevant records produced before this court by the respondents. Hence, to say the least the stand in the counter affidavit is misleading and on examination of the relevant files produced before the court does not provide any answer as to how and why the petitioners name came up for transfer to Bhagalpur. Admittedly, it was not a part of regular chain transfer. Hence, to say the least the stand in the counter affidavit is misleading and on examination of the relevant files produced before the court does not provide any answer as to how and why the petitioners name came up for transfer to Bhagalpur. Admittedly, it was not a part of regular chain transfer. Regarding shortage of teaching faculty as appears from a chart dated 4.9.2000 contained in uh-numbered folder file, there were vacancies in the post of Professor as well as other teaching posts in many other departments of Medical College at Bhagalpur but no steps were taken to fill up all those posts or even one such other vacant post. On the basis of Annexures- 16 and 14 which have been noticed earlier, it is clear that there was no action taken when a Diploma course in pathology was de-recognised in Ranchi Medical College in March, 2000 and in spite of selection by Bihar Public Service Commission two persons were not offered appointment as Professors in Pathology although the result was published in April, 2000. Such materials and discussions leave this court with no choice but to accept the submission advanced on behalf of the petitioner that the impugned transfer has been made by ignoring the relevant materials and in arbitrary and unfair manner. 17. It is not for this Court to go into the question as to whether the petitioner should be posted at Patna or at Bhagalpur but it is clear that not only the manner of taking the decision is highly unsatisfactory but the respondents have not considered such relevant materials as the fact that petitioner has been teaching for the post-graduate courses at Patna and prima facie his seniority and experience as a post-graduate teacher will not only be wasted at Bhagalpur but it will also most likely harm the interest of the students of post-graduate courses at Patna. Hence, for all the aforesaid reasons it is found that the impugned transfer of petitioner is arbitrary, unfair and for variety of reasons, malafide in law. 18. Prima facie this court is also of the view that the Establishment Committee which suggested the impugned transfer on 25.10.2000 was not properly constituted inasmuch as it should have included the Director-in-Chief or in his absence the Director Health Services. 18. Prima facie this court is also of the view that the Establishment Committee which suggested the impugned transfer on 25.10.2000 was not properly constituted inasmuch as it should have included the Director-in-Chief or in his absence the Director Health Services. However, no final opinion is being given on this issue as it may adversely affect the validity of other transfers included as part of Annexure-8 which are not in challenge in this writ application and as per findings given earlier the writ application is to succeed on other points. 19. In the result, this writ application is allowed and the impugned order of transfer dated 9.11.2000 (Annexure-8) in so far as the same relates to the petitioner is quashed. In the facts and circumstances of the case, there shall be no order as to costs.