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2005 DIGILAW 171 (PAT)

Surendra Prasad Singh v. State Of Bihar

2005-02-16

CHANDRAMAULI KR.PRASAD

body2005
Judgment Chandramauli Kr.Prasad, J. 1. Initially, prayer of the petitioner in this application was to quash the order dated 24.5.2004 (Annexure-3) whereby he was transferred from the office of the Civil Surgeon, Aurangabad to that of the office of the District R.C.H., Aurangabad as clerk. However, fateron, petitioner has been transferred to Additional Primary Health Centre, Obra by order dated 19.6.2004 (Annexure-5) and his prayer now is to quash the said order. 2. Short facts giving rise to the present application are that the petitioner is a clerk and was deputed in the office of the Civil Surgeon, Aurangabad, hereinafter referred to as Respondent No. 3, in the year 1990 and remained posted there on deputation till 1996. Thereafter he was posted there, where he continued till passing of the impugned order. It seems that a question was raised on the floor of the Assembly in regard thereto and the Director-in-Chief, hereinafter referred to as Respondent No. 2, vide its letter dated 15.12.2003 (Annexure-2) addressed to Respondent No. 3 directed to transfer him to any other place in the district and to communicate the said order by fax by 18.12.2003. It seems that the said direction was not carried out within the time but lateron by memo dated 24.5.2004, petitioner was transferred from the office of Respondent No. 3 to that of the District R.C.H. Aurangabad. The aforesaid order of transfer, perhaps, did not come to the notice of Respondent No. 2 and by order dated 11.6.2004, (Annexure-4), he wrote to Respondent No. 3 to post the petitioner to a distant Health Centre or Sub-Centre or Additional Health Centre where the post is vacant within three days. In the light of the aforesaid direction of Respondent No. 2, Respondent No. 3 by order dated 19.6.2004, transferred the petitioner to the vacant post of clerk at Additional Health Centre, Obra. It is this order of Respondent No. 3 which has been impugned in the present application. 3. Mr. Dinu Kumar, learned counsel appearing on behalf of the petitioner, submits that Respondent No. 3 is the competent authority to effect transfer of a clerk in the district and therefore, initial direction of the Director-in-Chief as contained in letter dated 15.12.2003 and letter dated 11.6.2004 (Annexure-6) are absolutely unauthorised and hence, the order of transfer is vitiated on that account alone. He further points out that in pursuance of the direction dated 15.12.2003, petitioner was transferred to the District R.C.H, Aurangabad and hence, lateron, petitioner ought not to have been transferred to Additional Primary Health Centre, Obra. 4. Junior Counsel to Standing Counsel No. 2, however, contends that Respondent No.2 is the superior officer in the hierarchy and nothing prevents him to advise the inferior authority to act in a particular manner. He points out that the petitioner was working in the office of Respondent No. 3 for long 12 years and when the said fact came to the notice of Respondent No. 2, through a question raised in the floor of the Assembly, it advised Respondent No. 3 to transfer him to any other place. He highlights that Respondent No. 3 was to pass the order and to communicate the same by 18.12.2003 but he had not chosen to pass the said order within the stipulated time and passed the order on 24.5.2004. He contends that the said order did not come to the notice of Respondent No. 2 and hence, by letter dated 11.6.2004 (Annexure-4), he directed Respondent No. 3 to post him at the vacant post in any distant Primary Health Centre or Additional Primary Health Centre and hence, the action of Respondent No. 3 in transferring the petitioner by the impugned order, cannot be said to be illegal. 5. Having considered the rival submission, I do not find any substance in the contention of Mr. Kumar. Petitioner was working in the office of Respondent No. 3 for long 12 years. This fact came to the notice of the Respondent No. 2 through the question raised in the Assembly. This was not found justified by Respondent No. 2 and accordingly, he directed for transfer of the petitioner within three days. Respondent No. 3 did not comply with the said order within the stipulated time but chosen to pass the order on 24.5.2004, i.e. after about five months. This fact did not come to the notice of Respondent No. 2 and he wrote to Respondent No. 3 for posting the petitioner on a vacant post of clerk in any Primary or Additional Primary Health Centre. Accordingly, he has been transferred to Additional Primary Health Centre, Obra on a vacant post. This fact did not come to the notice of Respondent No. 2 and he wrote to Respondent No. 3 for posting the petitioner on a vacant post of clerk in any Primary or Additional Primary Health Centre. Accordingly, he has been transferred to Additional Primary Health Centre, Obra on a vacant post. I am of the opinion that in the facts of the present case, Respondent No. 2 was right in writing to Respondent No. 3 for transfer df the petitioner. 6. Mr. Kumar then submits that the communication of Respondent No. 2 is stigmatic. He points out that in the order the petitioner was described as a disputed person (Vivadit Vyakti) and as such, the petitioner has been transferred by way of punishment and hence, on this ground alone, the order of transfer is fit to be quashed. 7. Junior Counsel to Standing Counsel No. II, however, contends that mere description of the petitioner as disputed personality shall not render the impugned order punitive in nature. 8. Having considered the rival submission, I do not find any substance in this submission of Mr. Kumar. Mere description of the petitioner as disputed personality, shall not render the impugned order punitive in nature. I clarify that it may not be considered as stigmatic. 9. Mr. Dinu Kumar lastly submits that many persons who are working in office for more than 12 years, have been left out but the petitioner has been chosen for transfer and this renders the impugned order illegal in the eye of law. 10. In case, other persons have been allowed to continue for more than 12 years, that itself will not justify the petitioners continuance. I do not find any substance in this submission of Mr. Kumar also. 11. Before I part with the case, I may observe that it is a failure on part of the Government to deal with erring officers sternly which has given rise to this writ application. Respondent No. 2 the Director- in-Chief, by letter dated 15.12.2003 addressed to Respondent No. 3 had directed for transfer of the petitioner and to send the said order by 18.12.2003. Respondent No. 3 had not obeyed the order within the time stipulated but has chosen to pass the order for the first time by order dated 24.5.2004. Respondent No. 2 the Director- in-Chief, by letter dated 15.12.2003 addressed to Respondent No. 3 had directed for transfer of the petitioner and to send the said order by 18.12.2003. Respondent No. 3 had not obeyed the order within the time stipulated but has chosen to pass the order for the first time by order dated 24.5.2004. It is for the State Government to consider as to whether any departmental action is called for against such Civil Surgeon who had not complied the order of the Director- in-Chief within the time stipulated. 12. In the result, I do not find any merit in the application and it is dismissed accordingly. 13. Let a copy of this order be forwarded to the Secretary-cum-Commissioner, Govt. of Bihar in the department of Health immediately for such action as he deems necessary in the matter.