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2005 DIGILAW 428 (PAT)

Sabita Kumari v. State Of Bihar

2005-04-20

S.N.HUSSAIN

body2005
Judgment S.N.Hussain, J. 1. Heard learned counsel for the petitioner and learned counsel for the State. 2. This writ petition is directed against the order dated 6.12.2004 issued by Medical Officer-in-charge, Primary Health Centre, Barhara, Bhojpur, by which the petitioner was directed to get relieved from there for joining at Referral Hospital, Sahpur Prakhand, Bhojpur, in compliance of order dated 3.12.2004 passed by Civil Surgeon-cum-Chief Medical Officer, Bhojpur at Arrah. 3. Learned counsel for the petitioner while challenging the aforesaid order submits that the petitioner was appointed on 1.4.2002 (Annexure-1) as Auxilliary Nurse Mid-wife (ANM) whereafter she was posted at Primary Health Centre, Barhara, on 1.6.5.2002 (Annexure-2). The learned counsel for the petitioner further submits that since the post at Babhangama Sub-Centre of Barhara Primary Health Centre was not a sanctioned post and merely a created post, the Chief Medical Officer, Arrah, vide his order dated 26.11.2002 (Annexure-3) directed the petitioner to remain posted at Babhangama Sub-Centre of Barhara Primary Health Centre and for the purpose of her salary etc., her posting was fixed at Sahpur Prakhand Sub-Centre, Chamarpur, whereafter the petitioner joined at Chamarpur Sub-Centre on 2.12.2002 (Annexure-5), but on the next date i.e on 3.12.2002, (Annexure-6) the Medical Officer-incharge, Referral Hospital, Sahpur Prakhand, relieved the petitioner for joining at Babhangama Sub-Centre of Barhara Primary Health Centre and the petitioner joined there on 4.12.2002 (Annexure-7). The learned counsel for the petitioner further submits that the Incharge, Medical Officer, Sahpur Prakhand asked the Incharge, Medical Officer, Primary Health Centre, Barhara, by letter dated 10.12.2002 (Annexure-8) to send the papers of the petitioner for payment of salary which was complied by the Incharge, Medical Officer, Primary Health Centre, Barhara, on 12.12.2002 (Annexure-9) whereafter salary is being paid to the petitioner. 4. The learned counsel for the petitioner also states that two years thereafter the impugned order dated 6.12.2004 (Annexure-10) was passed by the Incharge, Medical Officer, Primary Health Centre, Barhara, directing the petitioner to hand-over charge to Sri Satyendra Kumar Pandey and get relieved from there for joining at Sahpur Prakhand. 4. The learned counsel for the petitioner also states that two years thereafter the impugned order dated 6.12.2004 (Annexure-10) was passed by the Incharge, Medical Officer, Primary Health Centre, Barhara, directing the petitioner to hand-over charge to Sri Satyendra Kumar Pandey and get relieved from there for joining at Sahpur Prakhand. The learned counsel for the petitioner further submits that by the said impugned letter of Incharge, Medical Officer, Primary Health Centre, Barhara, the order of Civil Surgeon-cum-Chief Medical Officer, Bhojpur, is sought to be amended, which according to him, cannot be done by the Incharge, Medical Officer, Primary Health Centre, Barhara, and such order can be passed only by the Civil Surgeon-cum-Chief Medical Officer, Bhojpur, himself. 5. Second point raised by the learned counsel for the petitioner is that this is the first posting of the petitioner and hence she can not be transferred within the period of three years. The learned counsel for the petitioner also contends that the impugned order of Incharge Medical Officer, Primary Health Centre, Barhara, has been issued on the basis of an order of the Civil Surgeon-cum-Chief Medical Officer, dated 3.12.2004, but she had no information about the said order nor any copy of the said order was ever sent to the petitioner. He further submits that she is not aggrieved by the said order dated 3.12.2004 of the Civil Surgeon-cum-Chief Medical Officer, Bhojpur, as by the said order the petitioner was directed to join her original place of posting, which according to the petitioner, was at Babhangama Sub-Centre of Barhara Primary Health Centre, Hence, the petitioner has not challenged the said order of the Civil Surgeon-cum-Chief Medical Officer, Bhojpur, dated 3.12.2004 which has been brought on record by the respondents as Annexure-C to the counter-affidavit. Thus, the learned counsel for the petitioner avers that in the aforesaid circumstances, there was no occasion for the Incharge, Medical Officer, Primary Health Centre, Barhara, to direct the petitioner to hand-over charge to another person and get relieved from that post. 6. On the other hand, the learned counsel for the State submits that the petitioner has already been relieved on 16.2.2005 (Annexure-12) and hence nothing remains for her except to join at Chamarpur Sub-Centre of Sahpur Prakhand. 6. On the other hand, the learned counsel for the State submits that the petitioner has already been relieved on 16.2.2005 (Annexure-12) and hence nothing remains for her except to join at Chamarpur Sub-Centre of Sahpur Prakhand. He further states that order of Civil Surgeon-cum-Chief Medical Officer dated 3.12.2004 was quite clear by which the petitioner was directed to join at Chamarpur Sub-Centre of Sahpur Prakhand. In the aforesaid circumstances, the learned counsel for the State submits that the reliefs claimed by the petitioner can not be granted. 7. After hearing the learned counsel for the parties and after perusing the materials on record, it is quite apparent that vide order dated 3.12.2004 (Annexure-C) the civil Surgeon-cum-Chief Medical Officer, Bhojpur, had ordered that the petitioner be immediately relieved from Babhangama Sub-Centre of Barhara Primary Health Centre to join the post at Chamarpur-Sub-Centre of Sahpur Prakhand. Hence, in the aforesaid circumstances, the main order was of the Civil Surgeon-cum-Chief Medical Officer, namely, Annexure-C and in compliance of the said order, the Incharge, Medical Officer, Barhara Prakhand had passed the impugned order dated 6.12.2004 (Annexure-10). 8. In the aforesaid circumstances, the petitioner having not challenged the order of Civil Surgeon-cum-Chief Medical Officer dated 3.12.2004, no relief can be granted to her by way of quashing only the consequential order of the Incharge, Medical Officer, Barhara Prakhand. The learned counsel for the petitioner has submitted that she had no knowledge or information about the said order of the Civil Surgeon-cum-Chief Medical Officer dated 3.12.2004. But the said statement is falsified by the impugned order dated 6.12.2004 (Annexure-10) in which the said order of the Civil Surgeon-cum-Chief medical Officer, has been specifically mentioned. Hence, if the petitioner wanted to challenge the said order, she had ample opportunity to do the same. It is also clear from the records of the case that the petitioner has not come with clean hand as she has suppressed the order of the Civil Surgeon-cum-Chief Medical Officer dated 3.12.2004 (Annexure-C) and the Respondent-State had to bring it on record to make the matter clear. 9. It is also clear from the records of the case that the petitioner has not come with clean hand as she has suppressed the order of the Civil Surgeon-cum-Chief Medical Officer dated 3.12.2004 (Annexure-C) and the Respondent-State had to bring it on record to make the matter clear. 9. So far the order of the Civil Surgeon-cum-Chief Medical Officer dated 3.12.2004 (Annexure-C) is concerned, it is quite apparent from the said order that the earlier order passed by him dated 26.11.2002 (Annexure-3) has been cancelled and further arrangement has been made for which the said authority is quite competent and hence I find no illegality or error in the said order of the Civil Surgeon-cum-Chief Medical Officer dated 3.12.2004 (Annexure-C) as well as in the consequential order of the Incharge, Medical Officer, Barhara Prakhand dated 6.12.2004 (Annexure-10). Accordingly, this writ petition is dismissed.