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2010 DIGILAW 129 (CHH)

S. G. Pandey v. State of C. G.

2010-05-06

SATISH K.AGNIHOTRI

body2010
ORDER Satish K. Agnihotri, J. 1. Challenge in this petition is to the order dated 5.2.2006 (Annexure - P/6) passed by the Secretary, Department of Health and Family Welfare, whereby the representation of the Petitioner for appointing her on the post of Civil Surgeon-cum-Chief Hospital Superintendent in Sardar Patel District Hospital, Bilaspur, was rejected. 2. The indisputable facts, in nutshell, as projected by the Petitioner, are that the Petitioner is a senior specialist. Her name was at S. No. 9 in the gradation list published as on 01.04.2007 and the name of the present Civil Surgeon-cum-Chief Hospital Superintendent i.e Dr. Amar Singh Thakur/Respondent No. 5 is at 33. Ignoring the claim of the Petitioner, being senior most specialist in District Hospital, Bilaspur, Respondent No. 5 has been appointed as Civil Surgeon-cum-Chief Hospital Superintendent, by order dated 30.06.2008 (Annexure P/3). Earlier the Respondent No. 5 was posted as in-charge Chief Medical Officer, Ambikapur. 3. Being aggrieved, the Petitioner preferred a writ petition before this Court being W.P. (S) No. 6186 of 2008. The said writ petition was disposed of by this Court vide order dated 7.11.2008 (Annexure P/4) reserving liberty to the Petitioner to file a detailed representation against her grievances. It was further directed to the concerned authority to consider and decide the representation of the Petitioner within a period of four weeks from the date of receipt of representation. The representation of the Petitioner was rejected by the impugned order dated 5.2.2009 holding that the appointment of Civil Surgeon-cum-Chief Hospital Superintendent is not dependent on the seniority alone, but regard is had to the administrative nature of work also. Any senior specialist having additional experience or ability for administration, may be appointed as Civil Surgeon-cum-Chief Hospital Superintendent. Accordingly, the Respondent No. 5 was appointed and there is no irregularity in not appointing the Petitioner on the post of Civil Surgeon-cum- Chief Hospital Superintendent as District Hospital, Bilaspur. The Petitioner, in the meantime, transferred as In-charge Civil Surgeon-cum-Hospital Superintendent, Kawardha, by order dated 30.06.2008, which was amended subsequently on 04.07.2008. The said order of transfer with amendment was cancelled on 07.07.2008. 4. Shri Shukla, learned Counsel appearing for the Petitioner, would submit that on the basis of set up of the District Hospital, it is evident that the senior specialist may be appointed as Superintendent. There is no dispute that the Petitioner was senior most specialist posted in Bilaspur. The said order of transfer with amendment was cancelled on 07.07.2008. 4. Shri Shukla, learned Counsel appearing for the Petitioner, would submit that on the basis of set up of the District Hospital, it is evident that the senior specialist may be appointed as Superintendent. There is no dispute that the Petitioner was senior most specialist posted in Bilaspur. The claim of the Petitioner has been ignored, which amounts to arbitrariness and discrimination. The Petitioner was transferred as In-charge Superintendent to the District Hospital, Kawardha, which was also cancelled by order dated 07.07.2008 and, as such, even the opportunity of working as In-charge superintendent of the hospital has been denied to the Petitioner. This leads to embarrassment and inconvenience to the Petitioner. 5. On the other hand, Shri Moorthy, learned Deputy Advocate General for the State, would submit that the representation of the Petitioner was rightly rejected by order dated 5.2.2009 holding that the appointment of Civil Surgeon-cum-Chief Hospital Superintendent is not dependent on the seniority list alone, but it depends on expertise and ability to perform the administrative work also. Any senior specialist having aforestated qualities for administration may be appointed as Civil Surgeon-cum-Chief Hospital Superintendent. Accordingly, the Respondent No. 5 was appointed and there is no irregularity in not appointing the Petitioner on the post of Civil Surgeon-cum-Chief Hospital Superintendent as District Hospital. Bilaspur. 6. Despite service of notice, the Respondent No. 5 has chosen neither to appear before this Court nor has filed any response. 7. I have heard learned Counsel appearing for the parties, pleadings and documents appended thereto. 8. There is no dispute that in the gradation list of specialists as on 01.04.2007 the name of the Petitioner is at S. No. 9 whereas the name of the Respondent No. 5 at S. No. 33. However, having regard to the nature of work of Superintendent, which is more administrative, the Respondent No. 5 was appointed as Civil Surgeon-cum-Chief Hospital Superintendent. Contention of the learned Counsel for the State that having regard to the nature of work the Respondent No. 5 was found more suitable and accordingly, he was appointed as Civil Surgeon-cum-Chief Hospital Superintendent merits acceptance. It is also brought to the notice of this Court by the learned Deputy Advocate General that during the posting of Dr. Contention of the learned Counsel for the State that having regard to the nature of work the Respondent No. 5 was found more suitable and accordingly, he was appointed as Civil Surgeon-cum-Chief Hospital Superintendent merits acceptance. It is also brought to the notice of this Court by the learned Deputy Advocate General that during the posting of Dr. Girish Pandey as Civil Surgeon-cum-Chief Hospital Superintendent at District Hospital, Bilaspur, the Petitioner has not raised any grievance though Dr. Girish Pandey was junior to the Petitioner. It is not correct that if the Petitioner has not raised her grievance earlier, she is estopped from raising her grievance subsequently. No document, notification, executive instruction or rules have been placed on record indicating that the senior most person without considering administrative ability should be appointed as Civil Surgeon-cum-Chief Hospital Superintendent. For want of any material except the set up of the staff in the District Hospital, it cannot be held that the senior most alone is entitled to be appointed as Civil Surgeon-cum-Chief Hospital Superintendent in the district Hospital. Thus, the Petitioner has no indefeasible right, on account of being the senior to Respondent No. 5, to appointment on the post of Civil Surgeon-cum-Chief Hospital Superintendent at District Hospital, Bilaspur. 9. It is well settled principal of law that if there is no grievance or existence of any legal or any other right of the Petitioner, no mandamus can be issued to the Respondent/authorities. 10. For the reasons mentioned hereinabove, the writ petition fails and is hereby dismissed. 11. There shall be no order asto costs.