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2002 DIGILAW 1010 (PAT)

Lakhindra Prasad v. State Of Bihar

2002-09-16

NARAYAN ROY

body2002
Judgment 1. Heard Mr. Banwari Sharma, learned counsel for the petitioner and JC to AAG II for the State. 2. By this writ application, the petitioner has prayed for quashing the notification dated 17.8.2002, as contained in annexure 2, whereby and whereunder the petitioner has been transferred from the post of Additional Chief Medical Officer, Sitamarhi to the post of Deputy Superintendent, Sadar Hospital, Buxar. 3. Learned counsel appearing on behalf of the petitioner submitted that from the impugned annexure, so far the petitioner is concerned, it would be manifest that no officer senior to this petitioner in the category of Scheduled Caste has been posted as Additional Chief Medical Officer, and, therefore, his posting on the post of Additional Chief Medical Officer was illegal, and, therefore, he is being transferred to the post of Deputy Superintendent, Sadar Hospital, Buxar. It is submitted by learned counsel appearing on behalf of the petitioner that from the provisional seniority list, as contained in annexure 1, it would appear that many of the doctors, who are even juniors to the petitioner, namely, Dr. Amarendra Kumar Aman, Dr. Uchitlal Mandal and Dr. Nageshwar Mandal, have been transferred and posted as Additional Chief Medical Officers. 4. Despite order dated 23.8.2002 counter affidavit has not been filed on behalf of the State. However, this application in absence of counter affidavit is being disposed of on the basis of the materials already available on the record. 5. From the seniority list, it appears that the name of the petitioner is placed at serial no. 244, whereas that of Dr. Amarendra Kumar Aman is at serial no. 252, Dr. Uchitlal Mandal is at serial no. 258 and Dr. Nageshwar Mandal is at serial no. 262. It is not in dispute that Dr. Amarendra Kumar Aman, Dr. Uchitlal Mandal and Dr. Nageshwar Mandal, who have been shown junior to the petitioner in the seniority list, have been posted as Additional Chief Medical Officers. But in the case of the petitioner, a different yardstick is being applied by confusing the issue that no senior doctor to the petitioner has been posted as Additional Chief Medical Officer in the State of Bihar. 6. Prima facie, it appears from the seniority list that the petitioner is much senior to Dr. Amarendra Kumar Aman, Dr. Uchitlal Mandal and Dr. 6. Prima facie, it appears from the seniority list that the petitioner is much senior to Dr. Amarendra Kumar Aman, Dr. Uchitlal Mandal and Dr. Nageshwar Mandal and the juniors, as referred to above, have been posted as Additional Chief Medical Officers. Since the juniors to the petitioner have been posted as Additional Chief Medical Officers, the analogy that no senior doctor to this petitioner has been posted as Additional Medical Officer is not understandable to me. 7. Since the juniors are enjoying the higher post than that of the petitioner, in my opinion, the order impugned, as contained in annexure 2, is arbitrary, unreasonable and discriminatory. 8. JC to AAG II at the face of the relevant materials brought on record does not dispute the factual aspect of the matter nor he is disputing the seniority list, as referred to above. 9. Learned counsel appearing on behalf of the petitioner lastly submitted that pursuant to the earlier direction of this Court, the petitioner reported his joining in Sadar Hospital, Buxar, but he could not join the post as the post was not vacant and for this , the Civil Surgeon-cum-Chief Medical Officer, Buxar, vide letter dated 24.8.2002 apprised the Commissioner-cum-Secretary of the Department that the post of Deputy Superintendent is not vacant in Sadar Hospital, Buxar and pursuant to that the petitioner reported his joining in the office of the Additional Secretary, Department of Health, Government of Bihar,Patna. 10. For the reasons aforementioned, therefore, the order impugned, as contained in annexure 2, so far the petitioner is concerned, is not sustainable in law and the same is set aside and the authorities are directed to give appropriate posting to the petitioner within a period of four weeks from the date of receipt/production of a copy of this order, according to the seniority list and keeping in view that the juniors to the petitioner have been posted as Additional Chief Medical Officers in the other Districts of the State of Bihar. 11. With the aforesaid direction/observation, this application is disposed of.