Research › Search › Judgment

Patna High Court · body

2002 DIGILAW 661 (PAT)

Prativa Kumari v. State of Bihar

2002-06-03

S.N.JHA

body2002
JUDGMENT S.N. JHA, J. :-In this batch of ten writ petitions on behalf of 22 petitioners in all, the dispute relates to repatriation of ESI Medical Officers to the Health Department. By common notification dated 10.10.2001 the petitioners and others have been repatriated by the Labour, Employment & Training Department (in short, Labour (Department) to their parent department i.e. the Health Department. They seek quashing of the said notification and ancillary reliefs. 2. The representative facts of the cas may be noticed from the record of CWJC No.13987/2001 which has been argued as the leading case. Briefly stated, the case of the petitioners is that they were appointed as Civil Assistant Surgeons in the Health Department by the Government of Bihar but their services were transferred permanently to the Labour Department to work in the hospitals and dispensaries under the Employees' State Insurance (ESI) Scheme. Under the provisions of the Employees State Insurance Act, 1948 the Central Government has established Employees' State Insurance Corporation for the administration of the employees insurance scheme. The ESI scheme envisages improvement of the health and welfare of the insured employees, their rehabilitation and reemployment in case of disablement or injury. The fund is provided to the Corporation by the Central Government, the State Government, the local authority or any individual or body for all or any purposes of the Act. For implementing the scheme, inter alia, hospitals and dispensaries have been established to provide medical benefits under the administrative control of the Labour Department. For this purpose Insurance Medical Officers are posted. As per requirement Civil Assistant Surgeons belonging to the Bihar Health Services are drawn from Health Department. The petitioners were thus posted to the Labour Department. 3. The case of the petitioners, in context, is that they have been repatriated to the Health Department in a discriminatory manner on pick and choose basis. Those serving the Labour Department for longer periods have been retained while those who come later have been repatriated. The criteria mentioned in the minutes of the Establishment Committee dated 29.6.2001 are a ploy to retain the favoured ones and send back those not so fortunate. The decision to repatriate the petitioners (and others) in fact was taken beyond the terms of the agenda. Finally, without the cadre division upon bifurcation of State of Bihar under Bihar Reorganisation Act, 200, no repatriation could be made. 4. The decision to repatriate the petitioners (and others) in fact was taken beyond the terms of the agenda. Finally, without the cadre division upon bifurcation of State of Bihar under Bihar Reorganisation Act, 200, no repatriation could be made. 4. The respondents have filed three affidavits. Initially affidavits sworn by Dr. Ashok Kumar Verma, Incharge Director, Health Services, ESI Scheme and Dr. Ramesh Chandra Dwivedi, Deputy Director were filed which gave rise to some confusion. As a matter of fact they led to contempt notice. A comprehensive affidavit sworn by the Commissioner and Secretary, Department of Labour, Shri Rajesh Chandra Vaish, was later filed. It has been stated in the said affidavit that the ESI Medical Officers have been repatriated to the parent department i.e. Health Department primarily on two grounds, namely, financial and cut-off period. Under the ESI scheme the number of doctors, para medical staff and other staff depends on the number of insured employees of the particular hospital/ dispensary. There are dispensaries with only one doctor, while some dispensaries and hospitals have as many as five doctors. The criteria being one doctor for at least 1000 insured industrial workers as its members. Thus if there are 5000 insured members in a particular hospital/dispensary 5 doctors are posted. The availability of funds by the ESI Corporation/Government of India accordingly depends on the number of doctors, para medical staff and other staff posted in the dispensaries/hospital. After the bifurcation of the State the total number of the insured members of the dispensaries and hospital under the ESI scheme in the State of Bihar remains only 48,000. The Department of Labour had received on deputation as many as 114 doctors. Besides it has it own cadre of doctors numbering 46 out of whom 21 have been retained in Bihar on "As is wrere is" basis by virtue of their present posting in the States of Bihar and Jharkhand. In view of the reduced number of the insured industrial workers/members after the bifurcation of State, it became necessary to reduce the number of Insurance Medical Officers within the prescribed parameters. The Government of India contributes 7/8 th i.e. 88% of the total amount of expenditure on salary and allowances. Considering the number of the insured members it was thus decided to retain only 65 Insured Medical officers within laid down parameters. 49 Medical Officers thus were repatriated to their parent department. The Government of India contributes 7/8 th i.e. 88% of the total amount of expenditure on salary and allowances. Considering the number of the insured members it was thus decided to retain only 65 Insured Medical officers within laid down parameters. 49 Medical Officers thus were repatriated to their parent department. 5. As regard the criteria for selecting the Medical Officers for the purpose of repatriation it has been stated in the counter affidavit that such of them whose services were placed with the Labour Department upto 1992 have been sent back except the specialists and those whose spouse (either husband or wife) had later joined. Some of the cases about whom specific grievance is made on behalf of the petitioners about their being retained, on selective or pick and choose basis have been individually dealt with. I do not wish to refer to individual cases in this order. 6. The scope of judicial review against orders of transfer and posting is well settled by Judicial pronouncements. The transfer/posting is an executive function and under Article 226 of the Constitution the High Court cannot interfere with such orders except where there is violation of a statutory rule or it is actuated by malafide. No violation of statutory rule in the matter of repatriation has been pointed out. The petitioners also do not say that their repatriation is mala fide. What they allege is discrimination. Those for longer period (s) have been retained while they have been repatriated. The case of the respondents as noticed above is that those who joined the ESI Scheme upto 1992 have been repatriated except the specialist and such of them whose spouse (husband or wife, as the case may be) joined later. The retention of on the ground of subsequent posting of the spouse would appear to be reasonable notwithstanding the tenure of the husband or wife, as the case may be. As regards the controversy relating to retention of "specialist" medical officers department this Court would find it difficult to sit in appeal. May be some of the petitioners too are specialists in their own fields. As regards the controversy relating to retention of "specialist" medical officers department this Court would find it difficult to sit in appeal. May be some of the petitioners too are specialists in their own fields. Whether he or she should be retained or the other one is a matter which this Court cannot decide in writ jurisdiction, the remedy of the petitioners would be to file representation before the Government, though I must observe that other things remaining the same, those serving for longer period should be transferred or repatriated, as the case may be. However, this is not how I propose to dispose of these writ petitions. 7. Some intervention petitions have been filed in opposition to the writ petitioners. On behalf of the Intervenors attention of the Court was drawn to Rule 24 of the Bihar Employees' State Insurance Medical Service Rules, 1981 framed under Article 309 of the Constitution. The Rules came into force with effect from 9.2.83 vide notification no. 272 of the Labour Department of date. It was stated that the Rule provides for option to the Insurance Medical Officers posted under the ESI Scheme prior to coming into force of these Rules to remain in the Scheme and accordingly some of the Intervenors had exercised their option to remain in the ESI Scheme i.e. under the Labour Department, and they could not be repatriated to the Labour Department irrespective of their tenure. The submission appears to be well founded. 8. From perusal of the ESI Medical Service Rules it appears that the State Insurance Medical Service has been constituted as a separate cadre. Rule 4 provides that appointment to the service shall be made by the following methods as may be decided by the Governor on each occasion :- (a) direct recruitment, (b) promotion (c) transfer from such other services or posts as are comparable with the service in status and emoluments-as may be decided by the Governor. The provisions regarding direct recruitment are contained in part III, those relating to promotion are contained in part IV. There is no specific provisions regarding recruitment by transfer. Rule 24, nowever, contains an option-cum-absorption clause, apparently for persons other than members of the ESI Medical Service Cadre, that is, serving in the ESI scheme on deputation basis. The said rule runs as under :- "24. There is no specific provisions regarding recruitment by transfer. Rule 24, nowever, contains an option-cum-absorption clause, apparently for persons other than members of the ESI Medical Service Cadre, that is, serving in the ESI scheme on deputation basis. The said rule runs as under :- "24. Option to remain in the scheme.-Insurance Medical officers, who are on deputation from the Health Department and are posted under the Scheme prior to the coming into force in these rules, shall be given chance to option if they would like to remain in the Scheme and on receipt of their option in favour of their continuance they shall be deemed to have been recruited under the corresponding provisions of these rules. The services of other deputed medical Officers, who would not like to remain in the Scheme, shall be returned to the Health Department: Provided that the Health Department shall invariably be consulted before an officer on deputation is finally absorbed in the service." (emphasis added) 9. It may be mentioned that notwithstanding the significance of the provisions of Rule 24 in the context of present dispute, the respondents have not come out with a clear stand as to whether, and if so which of them, the ESI Medical Officers-repatriated or not-had exercised the option to remain in the ESI scheme. It is clear from , bare reading of Rule 24 that such of the Insurance Medical Officers who were working in the ESI Dispensaries/hospitals on deputation, upon giving their option to remain in the scheme "shall be deemed to have been recruited under these rules" subject to consultation with the Health Department. On the other hand, in the event of non-exercise of option to remain in the ESI scheme, the services of the concerned Medical Officers had to be returned to the Health Department. The use of the words "shall be returned" leave little room for doubt that the Government in the Labour Department has no option but to return their services to the Health Department. Thus, if the petitioners have not exercised any option in terms of Rule 24 to remain under ESI scheme, on this ground alone they cannot make any grievance of their repatriation. Unfortunately, as stated above, the counter affidavit does not advert to this aspect of the case. 10. From photo copy of D.O. letter no. Thus, if the petitioners have not exercised any option in terms of Rule 24 to remain under ESI scheme, on this ground alone they cannot make any grievance of their repatriation. Unfortunately, as stated above, the counter affidavit does not advert to this aspect of the case. 10. From photo copy of D.O. letter no. 2459 dated 22.8.87 of Shri U.D. Chaubey, Additional Secretary, Labour Department addressed to Shri. B. Lal, Secretary, Health Department, Produced at the time of hearing, it appears that option had been sought from the serving Insurance Medical Officers in terms of Rule 24 of the Rules and pursuant- to which as many as 40 Medical Officers had exercised their option in the affirmative, that is, they opted to remain in the ESI Scheme. By the said letter 'consent' of the Health Department for the absorption of the concerned doctors was sought. The letter was obviously written in the context of the proviso to Rule 24 (supra). It is not known whether the Health Department gave its consent as solicited by the said letter. In my opinion, however, in case the Health Department did not favourably respond to the letter, that would not stand in the way of the concerned Insurance Medical officer to remain in the ESI Scheme and their option must be treated as a fait accompli. The rule indicates that upon exercise of option to remain in the ESI Scheme the Medical Officer shall be "deemed" to have been recruited under the provisions of the Rules. The 'consent' of the Health Department is not a sine qua non. It is only required to be consulted. The concerned Medical Officers thus must be treated to have been finally absorbed in the ESI Medical Service cadre constituted by the said rules. There was/is no question of their being repatriated or reverted to their erstwhile parent department i.e. Health Department. If, thus, these petitioners, or such of them, exercised their option in favour, that is, to remain in the ESI Scheme, they will be deemed to have been absorbed in the service and their repatriation must be struck down on this ground alone. If, thus, these petitioners, or such of them, exercised their option in favour, that is, to remain in the ESI Scheme, they will be deemed to have been absorbed in the service and their repatriation must be struck down on this ground alone. A priori they cannot make any grievance of their repatriation in case they did not opt to remain in the ESI Scheme, nor can they make any grievance of retention of Insurance Medical officers who exercised their option in their favour and, thus, are to be treated as absorbed in the ESI Medical Services. This should take care of major part of the controversy arising in these writ petitions. 11. De hors Rule 24, the criteria evolved by the Establishment Committee in its meeting held on 29.6.2001 does not seem to be arbitrary. With the reduction of the number of this insured industrial workers/members, more than half of the dispensaries/hospitals falling in the State of Jharkhand, it is clear that surplus staff including Medical officers had to be sent back to the Health Department lest the Labour Department would not be able to meet the establishment cost on account of availability of lesser fund by the ESI Corporation/Government of India, and if in this context the Committee decided to repatriate the Medical Officers who were deputed to the Labour Department upto 1992 i.e. ten years ago, the decision cannot be said to be arbitrary at all. I must hasten to clarify that this observation should not be understood to mean that even such Medical Officers should be sent back who had opted to remain in the ESI Scheme under the Labour Department under Rule 24 of the Rules and are to be treated as absorbed in the ESI Medical Service, as observed above. On/the contrary and as a matter of fact, if the petitioners or others did not exercise their option, on plain interpretation of Rule 24 their services had to be mandatorily returned to the Health Department and they cannot make any grievance against it. Unfortunately the pleadings on either side in this regard are not adequate. 12. In the ordinary course I would have dismissed this writ petition relegating the petitioners to the internal remedy of representation before the Government, inasmuch as the dispute has to be considered in context of rule 24 of the ESI Medical Services Rules. Unfortunately the pleadings on either side in this regard are not adequate. 12. In the ordinary course I would have dismissed this writ petition relegating the petitioners to the internal remedy of representation before the Government, inasmuch as the dispute has to be considered in context of rule 24 of the ESI Medical Services Rules. I would ask the Government to consider the cases of the petitioners and others in the light of the observations made hereinabove. Considering that upon bifurcation of the State only 65 Insurance Medical Officers, are to be retained in the State of Bihar it is obvious that allowing all serving Insurance Medical Officer to remain in the scheme of the Labour Department for indefinite period would invite financial problems and there may be difficulty in paying them salary etc. and meeting other costs of establishment, it is thus imperative for the respondents to issue appropriate order within two months of receipt of a copy of this order. 13. The petitions stand disposed of. There will be no order as to costs.