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2003 DIGILAW 1309 (JHR)

Diwakar Kamat v. State of Jharkhand

2003-11-20

P.K.BALASUBRAMANYAN, TAPEN SEN

body2003
Order This writ petition is filed by the petitioner essentially seeking the issue of a writ of mandamus directing the respondents to give effect to an order of transfer dated 18.8.2001, notified by the Health & Family Welfare Department, Government of Jharkhand. The transfer related to 137 doctors in Medical Services. The petitioner who was working in Prinary Health Service, Palajori, Deoghar, was transferred as a Medical Officer, Public Health Laboratory and Hospital, Jamshedpur, in the place of one Dr. Dilip Kumar, who was working as a Medical Officer, M.G.M. College and Hospital, Jamshedpur. Dr. Dilip Kumar and certain others involved in that transfer, challenged that order of transfer before this Court in C.W.J.C. No. 3910 of 2001. By judgment dated 29.8.2001, this Court dismissed the said writ petition. In other words, the challenge to the order of transfer dated 18.8.2001 was repelled. Dr. Dilip Kumar and others filed an appeal before this Court as L.PA No. 545 of 2001, challenging the dismissal of their writ petition. In that appeal, on 1.7.2002, an agreed order was passed to the effect that the appellants in that appeal, including Dr. Dilip Kumar would make representations within a week before the Secretary, Health & Medical Education Department, Government of Jharkhand, and the same would be considered on its own merits in the light of the applicable Policy, Rules and Regulations and will be disposed of by a speaking order. It was also ordered that till the representation was disposed of, the status quo existing on the date with respect to the posting of the appellants, shall continue. 2. According to the petitioner, who was not a party to that writ petition, he joined his new post on 1.9.2001. His joining was accepted. But his salaries were not being paid. The authority concerned of the Institution, in which the petitioner joined, wrote various letters to the Deputy Secretary and the Secretary, Health and Medical Education Department, Government of Jharkhand, pointing out that the petitioner had joined service pursuant to the order of transfer on 1.9.2001, but the petitioner was not being paid salary and pointing out that based on an understanding of the order of High Court to maintain status quo, Dr. Dilip Kumar and two others had not been relieved from their posts. It appears that Dr. Dilip Kumar and two others had not been relieved from their posts. It appears that Dr. Dilip Kumar and others filed representations before the Secretary, Health and Medical Education Department, within the time fixed by the Division Bench of this Court in L.PA No. 545 of 2001. But, inspite of repeated letters sent by the concerned authority of the Institution, in which the writ petitioner joined on 1.9.2001, and in spite of the direction by the Division Bench, no order was passed on them by the Secretary, Health and Medical Education Department. The confusion was allowed to continue and the petitioner, as alleged by him, was made to suffer by not being paid his salaries from the period 1.9.2001. It was in that context that the petitioner filed the present writ petition on 14.5.2003, praying for implementing the order of transfer dated 18.8.2001, upheld by the learned Single Judge and not interfered with by the Division Bench. On 3.6.2003, the learned Single Judge before whom the matter came up that the matter required to be considered by the Division Bench since what was involved was the understanding of the scope of the order to maintain status quo passed by the Division Bench and whether it was operative in perpetuity as it were. That is how, the matter has come up before the Division Bench. 3. When we found that the order of transfer was not being implemented, notwithstanding the same being upheld by this Court in Annexure-2 judgment, and notwithstanding the long lapse of time, we issued a direction to the effect that the said order should be implemented. We superseded the status quo order passed in L.P.A. No. 545 of 2001 and clarified that the same could not continue to be in operation indefinitely. It is submitted now, that pursuant to our direction, the order, Annexure-1, dated 18.8.2001, has been implemented and Annexure-9 order has also been issued to the petitioner recognising the joining of the petitioner and ordering that the arrears of salary due to the petitioner has to be released. 4. It is submitted now, that pursuant to our direction, the order, Annexure-1, dated 18.8.2001, has been implemented and Annexure-9 order has also been issued to the petitioner recognising the joining of the petitioner and ordering that the arrears of salary due to the petitioner has to be released. 4. Learned counsel for the petitioner contended that the order, Annexure-1 dated 18.8.2001, was upheld by the learned Single Judge and in that situation the joining of the petitioner with effect from 1.9.2001, which is admitted, should have been taken note of and he petitioner should have been paid salaries on the basis that the petitioner was in active service and was working during that period. Learned counsel relied on the observations of the Supreme Court in Paragraph 7 of the judgment in Union of India vs. K. V. Jankiraman, AIR 1991 Supreme Court 2010, to point out that the petitioner could not work, not because he did not want to work or for his own reason, but he was prevented from working by the respondents, according to the petitioner, by misinterpreting the order of status quo and with a view to deliberately favouring some persons, who were affected by that order, and in that situation, there was no justification in not paying the arrears of salary due to the petitioner. Counsel also submitted that nothing stood in the way of the order of transfer being implemented in full then and there though the order has now been implemented in view of the interim direction issued by this Court. 5. The learned Advocate General appearing on behalf of the State, contended that this is a teaching post to which a person in the Health Service could not be transferred and in that view neither the petitioner nor Dr. Dilip Kumar and others, would be entitled to be posted to teaching posts in Medical Colleges. 6. It appears to us that, that question is not germane for deciding the present writ petition. That is a matter, on which the Government can take appropriate action, if it deems it fit and then transfer persons for those posts who are qualified or who are eligible to hold them. 6. It appears to us that, that question is not germane for deciding the present writ petition. That is a matter, on which the Government can take appropriate action, if it deems it fit and then transfer persons for those posts who are qualified or who are eligible to hold them. The argument in that behalf by the learned Advocate General appears to be not relevant for the purpose and at best it could mean that the interveners or others, who were parties to that judgment, could not also be accommodated in this post. 7. There is no argument on the side of the State that the arrears of salary was not payable to the writ petitioner, obviously in the context of Annexure-9 order. It would not to be possible to adopt such a position as well, but we think that it is necessary to observe that the conduct of the Deputy Secretary and the Secretary, Health and Medical Education Department, in the case on hand, was not what was expected of persons holding such responsible posts and involved in the administration of the Department. They had a plain duty to deal with the matter and dispose of the representations made by those persons, permitted to do so by the Division Bench of this Court in L.P.A. No. 545 of 2001, and take a final decision thereon expeditiously. They, for reasons unknown, did not pass any order on the representations made by those persons. They forgot that such procrastination would lead to changes of impropriety being hunted against them. We think that would be justified in drawing an inference that they were trying to unduly favour those who unsuccessfully challenged the order of transfer earlier passed. It is unfortunate that a situation was created, which compels the Court to draw such an inference. It would be appropriate for such persons, in the interests of administration, to bear in mind that their duties lie to the State and not to other private or sectarian interest. 8. On behalf of the interveners, learned counsel contended that the petitioner was not qualified to be posted in the post to which he was transferred. That aspect does not now arise for consideration. The challenge of the interveners to the order of transfer dated 18.8.2001 was dismissed by this Court. 8. On behalf of the interveners, learned counsel contended that the petitioner was not qualified to be posted in the post to which he was transferred. That aspect does not now arise for consideration. The challenge of the interveners to the order of transfer dated 18.8.2001 was dismissed by this Court. Though an appeal was filed against that dismissal, the interveners were not able to get what they had bargained for, on merits. They agreed to an order of making a representation to be disposed of by the Secretary, Health and Medical Education Department, on merits and in accordance with the Rules and Regulations. They cannot cling on the post from which they have been transferred and in this case, quite wrongly, under the cover of the fact that their representations still remained undisposed of. The whole arrangement smacks of impropriety. We are bound to observe and we are forced to say this in the circumstances of this case. Therefore, nothing turns on the argument of learned counsel for the interveners that the petitioner might not also be entitled to hold the post to which the petitioner has been transferred. 9. The learned Advocate General pointed out that the prayer in the form in which it is couched cannot be granted, since the Government has decided to appoint eligible and qualified persons in the teaching post involved in the order of transfer, Annexure-1. No one has a case that an order of transfer has perpetual life. It has life only, till another proper order of transfer is passed by the concerned authority vested with such power in accordance with the Rules and Regulations. Therefore, all that needs to be done in this case is to issue a direction to the Respondents 1 to 6 to implement the order of transfer, Annexure1, in full, and to take note of the fact that they had done so, pursuant to our interim order and direct them to pay the arrears of salaries and allowances due to the petitioner with effect from 1.9.2001, the date when he joined the particular post, pursuant to order of transfer dated 18.8.2001. The same must be paid to the petitioner, in any event, within one month from today. 10. We are also satisfied that the petitioner is entitled to costs of this litigation. The same must be paid to the petitioner, in any event, within one month from today. 10. We are also satisfied that the petitioner is entitled to costs of this litigation. We, therefore, direct the First Respondent-State to pay the petitioner towards his costs, a sum of Rs. 5,000/ (rupees five thousand), which the State would recover from the salaries and allowances of the Respondent Nos...3 and 4, who were holding those posts during the period 1.9.2001 to 21.12.2002, in equal proportion. This recovery from the two officers will be reported to this Court by way of an affidavit. 11. The writ petition is thus allowed.