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2007 DIGILAW 1211 (PAT)

Mahesh Prasad v. State Of Bihar

2007-07-25

J.N.SINGH

body2007
Judgment 1. This writ application has been filed for quashing of the order dated 20.11.2006, as contained in Annexure-10, whereby petitioner was directed to give his joining in the office of the Additional Chief Medical Officer, Supaul. A further prayer has been made for quashing of another order dated 20.11.2006, as contained in Annexure-11, by which respondent no. 6 has been directed to continue in the office of Civil Surgeon, Samastipur. A further prayer has been made for a direction to the respondents not to disturb the petitioner who has been adjusted as Steno-Typist in the office of Civil Surgeon, Samastipur. 2. From the chronology- of facts it appears that the petitioner was earlier working under Post Partum Programme, known as P.P. Programme, sponsored by the Central Government. The said programme was, however, closed with effect from 31.3.2003. Thereafter by letter dated 3.4.2003, as contained in Annexure-1, all the Civil Surgeons-cum-Chief Medical Officers of the State were directed to furnish the details of the incumbents working under them under P.P. Programme for their absorption in the State Government service. It appears that in reply to the same, Civil Surgeon-cum-Chief Medical Officer, Samastipur sent list of the incumbents working under him under P.P. Programme. Petitioner was shown at serial no. 2 in the list and it was stated that he was working on the vacant post on deputation in the office of R.C.H., Samastipur. 3. It appears that vide Annexure-A dated 27.5.2003 to the counter affidavit, matter of absorption of services of the incumbents working under P.P. Programme was notified. By this absorption order petitioner was absorbed in the office of the Additional Chief Medical Officer, Supaul. However, by Annexure-3 dated 12.6.2003, the Civil Surgeon-cum-Chief Medical Officer, Samastipur issued an order absorbing the services of the petitioner on the post of Steno-Typist in his office in anticipation of approval by the Department. In this order Civil Surgeon-cum-Chief Medical Officer narrated the necessity for detaining the petitioner in his office. Thereafter by letter dated 11.9.2003, as contained in Annexure-4, Civil Surgeon-cum-Chief Medical Officer, Samastipur requested the Director-in-Chief for approval of the absorption of the petitioner in his office. It appears that by letter dated 1.10.2003, as contained in Annexure-5, the Director-in- Chief approved the arrangements made by the Civil Surgeon-cum-Chief Medical Officer, Samastipur in his office order dated 12.6.2003. Thereafter by letter dated 11.9.2003, as contained in Annexure-4, Civil Surgeon-cum-Chief Medical Officer, Samastipur requested the Director-in-Chief for approval of the absorption of the petitioner in his office. It appears that by letter dated 1.10.2003, as contained in Annexure-5, the Director-in- Chief approved the arrangements made by the Civil Surgeon-cum-Chief Medical Officer, Samastipur in his office order dated 12.6.2003. However, said approval was revoked by the Director-in-Chief by his letter dated 18.3.2004, as contained in Annexure-6. 4. Thereafter, by Annexure-7 dated 2.6.2005 respondent no. 6 was transferred and posted in the office of the Civil Surgeon-cum-Chief Medical Officer, Samastipur on the vacant post. The order further mentioned that any posting made by the Civil Surgeon-cum-Chief Medical Officer, Samastipur in his office earlier shall stand cancelled. However, another order of the Director-in-Chief dated 2.1.2006, as contained in Annexure-8 was issued by which posting of respondent no. 6 was cancelled and he was posted in the office of Chief Medical Officer, Gopalganj. It was said in the order that respondent no. 6 had furnished wrong information with regard to vacancy in the office of Civil Surgeon-cum-Chief Medical Officer, Samastipur. 5. Here it is relevant to mention that by earlier order dated 18.3.2004, as contained in Annexure-6 and reiterated by order dated 2.6.2005, as contained in Annexure-7, any absorption made by the Civil Surgeon-cum-Chief Medical Officer, Samastipur on the vacant post in his office was cancelled. Thus, it is clear that the absorption of the petitioner in the office of the Civil Surgeon-cum-Chief Medical Officer, Samastipur had been cancelled and therefore, pursuant to Annexure-B to the counter affidavit petitioner was required to join in the office of Additional Chief Medical Officer, Supaul. It appears that in spite of these orders, petitioner was not relieved from the office of Civil Surgeoncum-Chief Medical Officer, Samastipur and therefore, order of posting of respondent no. 6 had been cancelled by Annexure-8 and petitioner was directed to continue in the office of Civil Surgeon-cum-Chief Medical Officer, Samastipur. It is strange that by Annexure-9 dated 21.2.2006 continuance of the petitioner in the office of Civil Surgeon-cum-Chief Judicial Magistrate, Samastipur was confirmed by the Director-in-Chief. 6. 6 had been cancelled by Annexure-8 and petitioner was directed to continue in the office of Civil Surgeon-cum-Chief Medical Officer, Samastipur. It is strange that by Annexure-9 dated 21.2.2006 continuance of the petitioner in the office of Civil Surgeon-cum-Chief Judicial Magistrate, Samastipur was confirmed by the Director-in-Chief. 6. However, by the impugned order dated 20.11.2006, as contained in Annexure-10, pursuant to the absorption of the petitioner in the office of the Additional Chief Medical Officer, Supaul, vide Annexure-B, he was directed to submit his joining in the office of the Additional Chief Medical Officer, Supaul. By this order, Civil Surgeon-cum-Chief Medical Officer, Samastipur was further directed to relieve the petitioner within one week for his said joining. By this order, all previous orders and directions issued in this regard were cancelled. Thus, it is apparent that in implementation of the policy decision of the Government regarding absorption of all the incumbents of P.P. Programme, petitioner had been directed to be absorbed on the said post in the office of Additional Chief Medical Officer, Supaul. Apparently, this order has been passed in implementation of policy decision of the Government for absorption of the incumbents working under P.P. Programme. Simultaneously, by order dated 20.11.2006, as contained in Annexure-10, respondent no. 6 has been ordered to join the office of Civil Surgeon-cum-Chief Medical Officer, Samastipur. 7. A counter has been filed on behalf of respondent no. 3 in which it is stated that in view of the closure of the P.P. Programme a Cabinet meeting was held on 11.3.2003 for taking policy decision for absorption of the incumbents working under P.P. Programme on vacant sanctioned post under the State Government. In view of the policy decision of the State Government, a notification dated 28.5.2003, as contained in Annexures-A and B was issued by which several incumbents working under P.P. Programme in different offices were absorbed on vacant sanctioned post in different offices of the State Government. It is stated in the counter affidavit that in spite of the orders, Civil Surgeon-cum-Chief Medical Officer, Samastipur did not relieve the petitioner and adjusted him against vacant post in his office which he was not authorised to do. It is stated in the counter affidavit that in spite of the orders, Civil Surgeon-cum-Chief Medical Officer, Samastipur did not relieve the petitioner and adjusted him against vacant post in his office which he was not authorised to do. It is stated in the counter affidavit that the said order Annexure-10 has been issued pursuant to the policy decision of the Government and in view of the absorption of the petitioner in the office of the Additional Chief Medical Officer, Supaul, the order retaining the services of the petitioner in the office of Civil Surgeon-cum-Chief Medical Officer, Samastipur was illegal. 8. Learned counsel for the petitioner has submitted that the petitioners services were absorbed in the office of the Civil Surgeon-cum-Chief Medical Officer, Samastipur which was approved by the Director-in-Chief. Thereafter, only with a view to accommodate and adjust respondent no. 6 he has been transferred to join in the office of the Additional Chief Medical Officer, Supaul. Learned counsel for the petitioner submits that since the services of the petitioner was first absorbed in the office of the Civil Surgeon-cum-Chief Medical Officer, Samastipur, he should not have been transferred subsequently to the office of the Additional Chief Medical Officer, Supaul. 9. On the other hand, learned counsel for the State has submitted that originally absorption of the petitioner was in the office of the Additional Chief Medical Officer, Supaul and as the said decision was taken by the State Government, the Civil Surgeon-cum-Chief Medical Officer, Samastipur was not authorised to retain the services of the petitioner in his own office. 10. I have considered the rival submissions of the parties. It is apparent that Annexures-A and B were issued pursuant to a cabinet decision and petitioners services were absorbed in the office of the Additional Chief Medical Officer, Supaul. In the circumstances, it was not open to the Civil Surgeon-cum-Chief Medical Officer, Samastipur to retain the services of the petitioner in his office. Likewise, it was also not open to the Director-in-Chief to pass contradictory orders approving the retention of the services of the petitioner in the office of Civil Surgeon-cum-Chief Medical Officer, Samastipur. In the circumstances, it was not open to the Civil Surgeon-cum-Chief Medical Officer, Samastipur to retain the services of the petitioner in his office. Likewise, it was also not open to the Director-in-Chief to pass contradictory orders approving the retention of the services of the petitioner in the office of Civil Surgeon-cum-Chief Medical Officer, Samastipur. Now that Annexure-10 has been issued pursuant to the absorption order issued by the Government absorbing the services of the incumbents working under P. P. Programme in different offices of the State Government including absorption of the services of the petitioner in the office of the Additional Chief Medical Officer, Supaul, I do not find any infirmity in the order contained in Annexure-10. As a consequence, order posting respondent no. 6 in the office of Civil Surgeon-cum-Chief Medical Officer, Samastipur, as contained in Annexure-11 is also valid and justified. 11. Before parting with the case, I may observe that entire confusion has been created in the case because of contradictory orders passed by the Director-in-Chief which has given rise to the claim of the petitioner to continue in the office of Civil Surgeon-cum-Chief Medical Officer, Samastipur, in spite of his absorption made on the vacant sanctioned post in the office of Additional Chief Medical Officer, Supaul. The Director-in-Chief ought to have taken care to see that since the absorption of petitioner was pursuant to the policy decision of the State Government absorbing the services of the incumbents working under P.P. Programme on vacant sanctioned posts in different offices of the State Government, the order posting the petitioner in the office of the Additional Chief Medical Officer, Supaul is implemented. If the Director-in-Chief was of the view that the services of the petitioner was required in the office of the Civil Surgeon-cum-Chief Medical Officer, Samastipur, he ought to have moved the matter before the State Government for suitable amendment in Annexure-B, which apparently was not done by him. Instead of that, the Director-in-Chief issued contradictory orders with regard to continuance of the petitioner in the office of the Civil Surgeon-cum-Chief Medical Officer, Samastipur. The said action of the Director-in-Chief is apparently fit to be deprecated. 12. In the result, I do not find any merit in this writ application and the same is accordingly dismissed.