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2002 DIGILAW 112 (PAT)

Madan Mohan Singh Yadav v. State Of Bihar

2002-01-24

AFTAB ALAM

body2002
Judgment Aftab Alam, J. 1. The action of one of the Departments of the Government brings it into conflict with another Government Department on the issue of control and jurisdiction of the respective Departments. But it is an individual Government employee, a citizen of this country who is made to suffer as the result of the conflict. 2. The petitioner is a member of the Bihar Health Service. He was posted as Medical Officer at the Addl. Primary Health Centre, Barun in the District of Aurangabad. On the directions given by this Court in CWJC No. 4036 of 1999, the Health Department of the Government undertook an exercise to transfer all medical officers who as on 30-6-2000 were posted in the same district for eight years or more. In that connection, the Addl. Secretary in the Department of Health issued notification under his Memo No. 2/72-2-44/2000,530(2)/Health, dated 14-11-2000 (Annexure-1). By this notification a large number of doctors were shifted from one place to another. The name of the petitioner figures at Serial No. 115 in this notification and on transfer he was posted as Health Officer in the Gaya Municipal Corporation. Pursuant to the transfer notification, the Civil Surgeon-cum-Chief Medical Officer, Aurangabad by order, dated 23-11-2000 asked the petitioner to hand over charge at the Addl. Primary Health Centre to some other doctor. The Petitioner handed over charge at the Addl. Primary Health Centre on the same day and submitted his joining report before the Administrator, Gaya Municipal Corporation on 24-11-2000. The Administer, Gaya Municipal Corporation by order, dated 25-11-2000 accepted his joining and asked the doctor working there as Health Officer from before to hand over charge to the petitioner. The petitioner assumed the charge of the post of Health Officer, Gaya Municipal Corporation on 27-11 -2000. 3. The Administer, Gaya Municipal Corporation by order, dated 25-11-2000 accepted his joining and asked the doctor working there as Health Officer from before to hand over charge to the petitioner. The petitioner assumed the charge of the post of Health Officer, Gaya Municipal Corporation on 27-11 -2000. 3. It seems that while posting the petitioner in the Gaya Municipal Corporation, the Health Department overlooked the fact that the Municipal Corporation was not under its control but was under the control of the Urban Development Department and when the Administrator of the Corporation after having accepted the petitioners joining there, wrote to the Secretary, Urban Development Department for issuing necessary notification for his posting there, the Urban Development Department refused to accept the petitioner there and a notification, dated 18-9-2001 was issued cancelling his posting in the Corporation and returning his services to his parent department, that is, the Department of Health. 4. This writ petition was then filed challenging the notification, dated 18-9-2001 by which the services of the petitioner were returned back to the Health Department. 5. In course of hearing, I find that there is hardly any scope for this Courts interference with the notification by which the petitioners services were returned to the Health Department. But, at this stage Mr. S.S. Asghar Husain, learned Senior Counsel appearing for the petitioner submitted that the petitioner was at least entitled to a suitable posting and for payment of his salary for all this period which was not paid to him for on fault on his part. 6. A counter-affidavit is filed today on behalf of respondent Nos. 1 and 3, that is, the Secretary and the Addl. Secretary, Department of Health. In the counter-affidavit none of the facts stated above are denied or disputed, it is admitted that the Department of Health found that there was a clear vacant post in Gaya Municipal Corporation and so the petitioner was transferred from Barun to Gaya Municipal Corporation by the Health Department. It is further stated that the Department of Urban Development was wrong in returning the services of the petitioner to the Department of Health but if the petitioner joins the Department of Health, he would be given a suitable posting. As regards payment of salary for the period, he was at the Gaya Municipal Corporation in para 5 of the counter-affidavit, it is stated as follows: 5. As regards payment of salary for the period, he was at the Gaya Municipal Corporation in para 5 of the counter-affidavit, it is stated as follows: 5. That with regard to the paragraph No. 19 of the writ petition, it is submitted that the Administrator, Gaya Municipal Corporation who took the service of the petitioner as a Medical Officer, for ten months is liable to pay the salary for the duty period because the petitioner discharged his duty under the Corporation for the period in question and hence it is liable to pay the salary of the petitioner. 7. This, to my mind, amounts to adding insult to injury caused to the petitioner. By this logic the Health Department may even post one of its employees in a private hospital and insist that he should demand salary from the private employer. 8. The petitioner did not go to the Gaya Municipal Corporation of his own accord. He was sent there by a notification issued by the Department of Health. It now trasnpires that the petitioners posting there was without proper application of mind and now the petitioner is being made to suffer for the mistake committed in the Department of Health by asking him to demand and get his salary from the Administrator, Gaya Municipal Corporation. 9. I have no doubt in my mind that the stand taken by the respondents is wholly unreasonable and cannot be upheld for a moment. The Department of Health is squarely responsible for payment of the petitioners salary from 25-11-2000 till the date he is given a fresh and proper posting and it will be for the Government to make departmental adjustments of the money paid to the petitioner by whatever method that may be permissible under the financial rules. 10. The authorities in the Health Department are, therefore, directed to give the petitioner a fresh and proper posting without any further delay. They will also take steps for payment of the petitioners salary from 25-11 -2000 till the date he is given a proper posting. All payments as directed in this order must be made to the petitioner within two months from the date of receipt/production of a copy of this order in the office of the Commissioner-cum-Secretary, Department of Health. 11. In the result, this writ petition is allowed to the extent indicated above but without any order as to costs.