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2006 DIGILAW 3 (GAU)

Abhijit Sarma (Dr. ) v. State of Assam

2006-01-01

B.K.SHARMA

body2006
B. K. SHARMA, J.— The petitioner is to thank himself for the kind of situation in which he is in, seeking redressal of which, he has filed the instant writ petition. 2. Blowing his own trumpet, the petitioner has unnecessarily indicated his academic excellence right from secondary school education and awarding of fellowship etc. during service which are not at all material to the case. Reading of the writ petition gives the impression that the petitioner thinks himself to be indispensable at the particular place of posting which has landed him in the trouble in which he is presently in. The petitioner with that mindset exerted pressure on the authorities from the very inception of his service career for his posting at a particular place i.e. Gauhati Medical College. 3. The fact material of the purpose of disposal of the writ petition are as follows: Pursuant to selection by the Assam Public Service Commission (APSC), the petitioner was appointed as Registrar/Resident Surgeon in the Surgery Department of the Assam Medical College, Dibrugarh vide notification dated 2.6.1997. This was preceded by some recommendations made in his favour for his posting at Gauhati Medical College. This was certainly done at the instance of the petitioner. 4. Within 15 days of the posting of the petitioner at Dibrugarh, he was transferred to Gauhati Medical College, Guwahati by notification dated 18.6.1997. By notification dated 26.3.1999, the petitioner was allowed to join two years fellowship and training in Surgical Gastroenterology at Hyderabad with the condition that his period of absence would be decide later on by the Government and the same would be binding on him and also that the petitioner would have to serve the State Government for a minimum period of 5 years after completion of the training 5. By Annexure-23 notification dated 31.3.2001, the petitioner was allowed to rejoin at Gauhati Medical College (GMC) upon his return from Hyderabad. He was so allowed to join at Guwahati against the vacant post of Registrar of Surgery of Silchar Medical College (SMC), Silchar and was allowed to work in the surgery Department of GMC. Immediately on joining the post on 2.4.2001, the petitioner submitted an application for half pay earned leave/extra ordinary leave from 23.4.2001 to 23.10.2001 for a further training course on ground that same would help starting a separate gastrointestinal surgical unit at GMC. 6. Immediately on joining the post on 2.4.2001, the petitioner submitted an application for half pay earned leave/extra ordinary leave from 23.4.2001 to 23.10.2001 for a further training course on ground that same would help starting a separate gastrointestinal surgical unit at GMC. 6. It appears that before the petitioner was deputed to Hyderabad, he was asked to execute bond for Rs. 5 lacs with the condition that he would be bound to serve under the Government of Assam for a period of 5 years on completion of the training course. However, the petitioner submitted the duly filled in bond only on 4.4.2001 with the further prayer to grant him extra ordinary leave for 6 months with effect from 23.4.2001. 7. Even before the leave was granted to the petitioner, the petitioner demitted his charge of office at GMC vide Anexure-30 charge report dated 24.3.2002 and proceeded to Hyderabad to undergo a training course at Nizam's Institute there. The leave application of the petitioner was forwarded to the Government by the Director of Medical Education, Assam by. his letter dated 4.5.2001. At the verge of completion of the training course at Hyderabad, the petitioner by his letter dated 3.9.2001 intimated the Government of Assam about his intention to set up a gastrointestinal unit at GMC and his willingness to join back at GMC. 8. It is the case of the petitioner that on his way back from Hyderabad to Guwahati he met with a road accident on 4.10.2001 and had to take treatment at Kalinga Hospital, Bhubaneswar as an outdoor patient and he resumed his journey to Guwahati on 9.10.2001. Meanwhile, the Government of Assam by its notification dated 8.10.2001 allowed the petitioner to join at Silchar Medical College upon his return from the training course. Instead of complying with the order of transfer, the petitioner by his letter dated 10.10.2001 addressed to the Deputy Secretary, Health & Family Welfare Department, by her name, made a request to allow him to join at GMC instead of SMC. This letter was addressed from Guwahati. This was followed by his letter to the Commissioner, Health & Family Welfare Department in his name intimating about the accident which he allegedly met with and requesting to allow him to join back at GMC instead of SMC. This letter was addressed from Guwahati. This was followed by his letter to the Commissioner, Health & Family Welfare Department in his name intimating about the accident which he allegedly met with and requesting to allow him to join back at GMC instead of SMC. He also made it the point to mention as to how his joining at GMC would help the Government, since ac-^cording to him he is the only qualified surgical gastroenterologist in this part of India, both academically and professionally. 9. The aforesaid letter of the petitioner was followed by number of representations of the petitioner to allow him to join at Guwahati. Further, he also went to Hyderabad for his medical checkup without any permission from the Government. The petitioner kept on making representations for resumption of duty at GMC. In the meantime, by Annexure-45 show cause notice dated 8.3.2002 asked him to submit written statement of defence to the charge that the remained unauthorisedly absent for the period from 24.3.2000 to 23.10.2001 and thereafter he did not join at SMC till the date of issuance of the show cause. 10. When the matter rested thus, the petitioner even got the letters issued from the Nizam's Institute of Medical Science, Hyderabad addressed to him and the Chief Minister of the State offering guidance towards establishing a gastrointestinal institute of surgery at GMC. The petitioner has harped upon the Annexure-48 letter dated 19.3.2002 addressed by the Chief Minister of the State to Dr. R. A. Shastri, Professor & Head, Department of Surgical Gastroenterology, Nizam's Institute of Medical Science, Hyderabad offering him thanks for his suggestion. In the meantime, the petitioner allegedly replied to the show cause notice by his letter dated 4.5.2002 without meeting the points raised in the show cause notice and once again blown his own trumpet stating how indispensable his service is at GMC. According to him, since he undertook the training being released from GMC, he could not have been asked to resume his duty at SMC. He also further stated that he had proceeded to Hyderabad for 6 months upon verbal assurance of the then Heath Minister and the Secretary, Health. The defence of the petitioner to the charges levelled against him is worth quoting. "4. He also further stated that he had proceeded to Hyderabad for 6 months upon verbal assurance of the then Heath Minister and the Secretary, Health. The defence of the petitioner to the charges levelled against him is worth quoting. "4. I left for training in Surgical Gastroenterology from Gauhati Medical College so here again I fail to understand how come my original place of posting is Silchar Medical College. 5. As already told to you I am the only professionally qualified Surgical Gastroenterologist in this region of India, I fail to understand what benefit the Govt. of Assam will get in posting me to Silchar Medical College which even doesn't have the requisite infrastructure for various complex hepatobiliary surgeries including a postoperative ICU. 6. Further there was an attempt on my life while I was studying at Hyderabad. The details are available with SP City, (Guwahati), I have been given police protection for the same. So it will not be safe for me to stay at Silchar for security reasons. In fact Government of Assam should be happy that not caring much of my own security I has come back to Assam to serve the people here. I have been offered many jobs both in India & abroad which I have refused to come back here keeping my commitments towards the Govt. of Assam. 7. When a institute like MIMS wants to help to set up at GI unit in GMCHI thought it was imperative on the part of the Govt. of Assam to grab the opportunity immediately. Further how does the Govt. expect me to forget whatever I have learned in the last 3 yrs & continue as a general Surgeon? I have studied 16 years of prime age to come to this position. 8. Further as per the bond it says that the Govt. of Assam has deputed me & the Government of Assam will incur all financial expenses. But till date I have not received any financial aid what so ever during my training period at Nizam's Institute of Medical Sciences. So I fail to understand where have I disobeyed the Government of Assam & how have I violated the terms & conditions of the said bond. I hope you kindly consider my plead." 11. When the matter rested thus, the petitioner proceeded to Japan for another training course. So I fail to understand where have I disobeyed the Government of Assam & how have I violated the terms & conditions of the said bond. I hope you kindly consider my plead." 11. When the matter rested thus, the petitioner proceeded to Japan for another training course. Although he had applied for the training course by letter dated 24.5.2002, the Government did not grant him permission and the petitioner went to Japan on his own accord. On 16.9.2002 the petitioner addressed a letter to the Secretary Health & Family Welfare Department by his name intimating that he would be joining back at GMC on his return from Japan and that he was very eager to share his knowledge with his colleagues. This was followed by his Annexure-59 representation to the Secretary giving the chronological events from March, 1999 onwards followed by further representations upto the level of Minister, Health & Family Welfare and the Chancellor of Gauhati University. 12. All the aforesaid developments took place without complying with the notification dated 8.10.2001, by which he was allowed to join at SMC. It will be pertinent to mention here that his earlier temporary accommodation at GMC was against a post meant for SMC. Defying the order of posting, the petitioner kept on representing to allow him to join at GMC on the ground that he is indispensable for GMC. The petitioner, ofhis own accord submitted a joining report at GMC stating the same to be as per the direction of the Commissioner & Secretary, Health. When, naturally such joining was not accepted, he again made an appeal to the Chief Minister of the State on 31.3.2003 followed by further representation to the Commissioner & Secretary, Health Minister and the Chief Minister of the State. 13. From paragraph 55 onwards in the writ petition, the petitioner has justified his defiance to the order of posting at Silchar. While doing so, true to his own perception, he spoke about his own self and his thinking that he is indispensable for GMC and there is none to compete with him both academically and professionally. 13. From paragraph 55 onwards in the writ petition, the petitioner has justified his defiance to the order of posting at Silchar. While doing so, true to his own perception, he spoke about his own self and his thinking that he is indispensable for GMC and there is none to compete with him both academically and professionally. The prayer made in the writ petition is to issue direction to the respondents to issue necessary notifications granting post-facto regularization of his training period at different places and to allow him to rejoin duty at GMC and to regularize the period of absence commencing from 26.3.1999 till the date of filing of the writ petition and to maintain his seniority in service. 14. The petitioner after creating the aforesaid position for himself, has filed the instant writ petition running to 156 pages and containing as many as 74 annexures. Most of the statements and annexures are totally irreverent for decision in the matter and they are only to show the own perception of the petitioner about his own self with the mindset that he is indispensable for GMC and his only place of posting could be only at GMC, although he was selected by the APSC for appointment as Registrar/Resident Surgeon in any of the medical colleges of the State. He started agitating about his posting from the very first appointment and could manage his posting at GMC within 15 days of his earlier posting at Dibrugarh. 15. During the course of hearing, Mr. A.K. Bhattacharyya, learned Sr. Counsel, assisted by Mr. P.C. Barpujari, learned counsel representing the petitioner produced the copy of the notification dated 31.12.2003, by which the petitioner has been shown transferred from SMC to GMC. This has been done pursuant to the interim order passed by this Court by which a direction was issued to consider the case of the petitioner for posting at GMC against the particular vacant post indicated in the order with the further direction that the post would not be filled up by any other person other than the petitioner. 16. Referring to the aforesaid facts Mr. 16. Referring to the aforesaid facts Mr. Bhattacharyya, learned Senior Counsel for the petitioner argued that having regard to the facts and circumstances involved in the case and also the high academic profile of the petitioner, he ought not to have been posted at SMC and the respondents ought to have extended all necessary help to the petitioner by granting leave etc. to join the different training courses and thereafter his reposting at GMC. He submitted that inspite of the recommendations of the higher-ups, the respondents did not consider the case of the petitioner in its true perspective and the petitioner has been made the victim of the circumstances. As regards the proceeding initiated against the petitioner by issuing the aforesaid show cause notice, he submitted that after submission of the show cause reply, the same having not been proceeded and in view of the fact that in the meantime, the petitioner has been transferred to GMC, the said proceeding should be deemed to be dropped and the entire period of absence should be regularized by granting leave due to the credit of the petitioner so that the said period does not, in any way affect the service the prospects of the petitioner. 17. The respondents have filed their counter affidavit. They have contended that although the petitioner was not entitled to any leave to undergo the higher studies at Nizam's Institute, Hyderabad since he had rendered only one year nine months of service, however, the Finance Department agreed to grant extra ordinary leave by relaxing Rule 14 (2) (iv) of the Leave Rules, 1934 under operation of FR & SR with the conditions that he would executed bond of Rs. 5 lacs and that he would applied for extra ordinary leave. However, the petitioner did not submit any formal leave application to the Government after returning from his training, but it was only on 7.3.2002, he submitted an application seeking extra ordinary leave for the period from 20.3.1999 to 1.4.2001 and from 23.4.2001 to 23.10.2001. 18. According to the respondents the petitioner is not entitled to any kind of leave as he has already availed leave more than his entitlement after rendering only one year and eleven months of service. The respondents have pointed out as to how the petitioner has defied the order of his posting at SMC. 18. According to the respondents the petitioner is not entitled to any kind of leave as he has already availed leave more than his entitlement after rendering only one year and eleven months of service. The respondents have pointed out as to how the petitioner has defied the order of his posting at SMC. As regards the Chief Minister's intervention in the matter in respect of the petitioner's visit to Japan to undergo the particular training course, the respondents have stated that the matter was considered, but the prayer could not be granted since the petitioner had no leave to his credit and no leave could be granted as per existing rules. However, the petitioner left for Japan without any approval of the Government. As regards the posting of the petitioner at SMC, the respondents have pointed out as to how the petitioner was accommodated at GMC against the vacancy of SMC, but the notification was withdrawn by another notification dated 11.6.2001 in compliance of the inspection report/direction of the Medical Council of India and also in view of the shortage of doctors at SMC. 19. The respondents have further contended that there is no question of payment of salary to the petitioner for the period of absence as the same is not covered by any rules and there is also no leave to the credit of the petitioner, he having rendered only one year eleven months of service. The respondents have also contended that the petitioner cannot have any choice regarding place of posting and it is the prerogative of the Government to post its officer having regard to public interest and the exigencies of service. 20. The respondents have also dealt with the plea of the petitioner that he had to undergo medical treatment for his alleged accident. Referring to the certificate of Kalinga Hospital, Bhubaneswar, the respondents have pointed out that in the certificate there is no advice to take rest for three months and that there is also no indication about the duration of his treatment etc. The respondents have further stated that the show cause notice was issued having regard to the conduct of the petitioner and for violation of the terms and conditions of the bond executed by the petitioner. 21. The respondents have further stated that the show cause notice was issued having regard to the conduct of the petitioner and for violation of the terms and conditions of the bond executed by the petitioner. 21. Although the petitioner has stated in the writ petition (paragraph 33) that he submitted his show cause reply to the show cause notice dated 8.3.2002, by his Annex-ure-49 letter dated 4.5.2002, but the respondents have contended that the said letter is not the show cause reply. They have pointed out as to how the petitioner by his Annexure-50 letter dated 7.5.2002 clearly stated that he did not respond to the show cause notice. The petitioner has not filed any affidavit-in-reply. 22. Mr. P.K. Mushahary, learned Sr. Government Advocate assisted by Ms. R. Chakraborty, learned State Counsel made submissions in tune with the above factual aspects of the matter and the pleas of the respondents in their counter affidavit. He emphasized the need for enforcing discipline in medical profession and submitted that the petitioner could not have defied the lawful order of the authority. As regards the present posting of the petitioner at GMC, he submitted that the same is only in terms of the above referred interim order passed by this Court. 23. The above factual aspects of the matter leave nothing to be decided by this Court. The petitioner is not entitled to even any sympathy not to speak of any redressal of his grievance, since there is none. Any sympathy shown to the petitioner will be misplaced. The abovementioned facts speak for themselves. Admission of facts amounts to admission of guilt. The petitioner has also not submitted any reply to the show cause notice. Although, in paragraph 33 of the writ petition, it has been clearly stated that he responded to the show cause notice by his Annexure-49 letter dated 4.5.2002, but on perusal of the same it cannot be said to be the show cause reply, which is also evident from his own Annexure-50 letter dated 7.5.2002 wherein he clearly stated that he did not respond to the show cause notice. Be that as it may, even if the Annexure-49 letter dated .4.5.2002 is accepted as the show cause reply, relevant portions of which have been quoted above, it only shows the defiance on the part of the petitioner and the admission of the facts/allegations in the show cause notice on the basis of which itself the respondents are entitled to take further course of action in the matter. 24. The petitioner not only defied the order of posting but also did not budge even an inch from his perception about himself and with that kind of perception acted all throughout projecting himself to be the most precious thing in the medical field. His numerous representations, copies of which have been annexed to the writ petition and his approaches to various authorities including the Chief Minister of the State speak volumes not only of his mindset, but also depict his misconduct, indiscipline and stubbornness, which does not behave of a person belonging to the noble medical profession. The needless voluminous writ petition numbering 156 pages with 74 Annexures does not depict infringement of any legal or fundamental right of the petitioner and the same has consumed much precious time, of this Court. The writ petition contains little about the real substance of the case, but much about unnecessary things by way of blowing the own trumpet of the petitioner. 25. From the facts narrated in the writ petition itself, it cannot be said that any legal right of the petitioner has been violated and required to be redressed exercising writ jurisdiction under Article 226 of the Constitution of India. The writ Court will not be swayed by any sympathetic consideration. Any sympathy, if shown to the petitioner will be misplaced one. Consequently, no relief can be granted to the petitioner. The respondents will do well to proceed against the petitioner by departmental proceeding which has already been initiated by the show cause notice dated 8.3.2002. In view of the admission of the facts by the petitioner, he has virtually admitted his guilt. There is no question of payment of any salary to the petitioner for the period during which he remained unauthorisedly absent and also for the training period, there being violation of the conditions and having regard to his subsequent conduct. In view of the admission of the facts by the petitioner, he has virtually admitted his guilt. There is no question of payment of any salary to the petitioner for the period during which he remained unauthorisedly absent and also for the training period, there being violation of the conditions and having regard to his subsequent conduct. Having regard to the length of service of the petitioner, which he has rendered prior to the unauthorized absence from due, he is also not entitled to any leave and there cannot be any direction to violate the Leave Rules, which will be misplaced sympathy to the petitioner. 26. The writ petition is dismissed without granting any relief to the petitioner. The interim order passed on 5.12.2003 stands vacated. Consequently, the notification dated 31.10.2003 also ceased to have any existence. It will be open for the petitioner to join his duty at Silchar Medical College, Silchar pursuant to the notification dated 8.10.2001, which still holds the filed, unless the Government decides otherwise. 27. The writ petition is dismissed with cost of Rs. 10,000/- to be realized from the petitioner by the registry as per High Court Rules.