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Madhya Pradesh High Court · body

2012 DIGILAW 702 (MP)

Sushila Tiwari v. State of M. P.

2012-07-11

K.K.TRIVEDI

body2012
Judgment This petition under Article 226 of the Constitution of India has been filed challenging the order dated 5-3-2012, by which the petitioner, who was working on the post of Auxiliary Nurse Midwife in Community Health Centre, Naogaon, District Chhattarpur, is sought to be transferred to Sub Primary Health Centre, Koutheha (Gourihar), on the ground that the aforesaid order has been issued treating the petitioner as surplus in the Community Health Centre, Naogaon, whereas, in view of the order passed by the M. P. State Administrative Tribunal, in the Original Application of the petitioner, she is not surplus in the said Community Health Centre. On the other hand, the respondent No. 4 is surplus who was required to be transferred, but mala fidely she has been accommodated and the petitioner has been transferred. It is contended that the dispute with respect to the counting of seniority of the petitioner in the said place for the purposes of assessing whether she was surplus or not, had already come to an end and this was specifically ordered by the Tribunal that the petitioner is to be treated as senior, yet illegally the respondent No. 4 who is surplus is retained and the petitioner is sought to be transferred. In view of the aforesaid, it is claimed by the petitioner that the order impugned is bad in law and is liable to be quashed. 2. This Court has entertained the writ petition and since a caveat was filed by the respondent-State, the notices were delivered to the respondents and they were asked to file the effective return. The respondent-State has filed the return contending that since the petitioner was working in the Community Health Centre, Naogaon, with effect from the year 1998, whereas, the respondent No. 4 was posted in the said Community Health Centre on 18-2-1988, the petitioner has rightly been found surplus and has been transferred by the order impugned. It is contended that since there is a report submitted in this respect by the Chief Medical and Health Officer, Chhattarpur, the petitioner was rightly transferred and that being so, the petitioner is not entitled to any relief. The respondent No. 4 has also supported the action of respondents No. 1 to 3. A rejoinder has been filed by the petitioner controverting the allegations made by the respondents in their return. 3. Learned counsel for the parties are heard at length. The respondent No. 4 has also supported the action of respondents No. 1 to 3. A rejoinder has been filed by the petitioner controverting the allegations made by the respondents in their return. 3. Learned counsel for the parties are heard at length. The record is examined. 4. Undisputedly, the petitioner was appointed as Auxiliary Nurse Midwife vide order dated 27-11-1981. It is not in dispute that the respondent No. 4 was appointed after seven years of appointment of petitioner as is clear from Document No. R/3 filed by the respondents along with their return. Therefore, from the initial date of appointment the petitioner was senior to the respondent No. 4. However, it appears that there were certain excess staff posted and, therefore, the policy was made by the State Government for adjustment of those excess staff. Prior to this, the final adjustment/absorption of petitioner was already ordered on 28-2-1994 by the Chief Medical and Health Officer, Chhattarpur. In terms of policy dated 19-5-1997, list of surplus staff was to be prepared. One such list was prepared, according to which, the respondent No. 4, who was treated to be surplus in the Community Health Centre, Naogaon, was sought to be posted elsewhere. However, for the said purposes of posting, the Chief Medical and Health Officer, Chhattarpur, was authorised. It further appears that the order of posting in respect of respondent No. 4 was issued by the Chief Medical and Health Officer Chhattarpur on 6-8-1997 transferring her to Chandrapura Gourihar. Pursuance to this order, the respondent No. 4 was required to be relieved, but the Chief Medical and Health Officer made a change in the posting and issued the order dated 13-11-1997, by which the respondent No. 4 was accommodated in Community Health Centre, Naogaon, and in her place, the petitioner was sought to be transferred to Chandrapura Gourihar. This was the order which was challenged by the petitioner in the M.P. Administrative Tribunal by filing Original Application No. 119/1998. The respondent No. 4 was a party in the said litigation. 5. The Tribunal entertained the Original Application granted an interim protection to the petitioner pursuance to which she was allowed to continue on the post at Community Health Centre, Naogaon. The returns were filed by the respondent-State in the said case. The respondent No. 4 was a party in the said litigation. 5. The Tribunal entertained the Original Application granted an interim protection to the petitioner pursuance to which she was allowed to continue on the post at Community Health Centre, Naogaon. The returns were filed by the respondent-State in the said case. The point of dispute was centrallised by the Tribunal, specifically asking the State Government to reply as to how the petitioner was treated surplus when she was specifically posted prior to the posting of respondent No. 4 in the Community Health Centre, Naogaon, and she was already regularised against a regular vacancy of an incumbent who had retired in the year 1994. The Tribunal has held in its order that the respondent-State has utterly failed to submit any response or comments, or even has thrown any light on the dispute as nothing was said in the return filed by the respondent- State before the Tribunal. Recording these facts the Tribunal has held in paragraph 5 of its order which read thus :- "5. It was expected that the return of the Respondent/State would throw some light on this point based on the Govt. instructions and the policy on this subject. However, like most Government returns the return in this case is not of good quality and the main issue raised by the applicant has not been addressed. Respondent State have stated in their return that respondent No. 4 will be treated as senior because she has been working at Community Health Centre, Naogaon since February, 1988. But the return is silent on the point raised by the applicant that she was working in Sub Centres under the Community Health Centre, Naogaon since 1981 and therefore, she should be considered senior. The applicant has stated in her rejoinder that "in fact the seniority of A.N.M. is maintained P.H.C. wise irrespective of their working at a sub-centre or in the main centre. The order of her regularisation as per her seniority by the C.M.O. Vide order dated 28-2-1994 was a legal, valid and proper order." Even after this, the respondent-State has not cared to file any additional reply to clarify the real point in issue." 6. The order of her regularisation as per her seniority by the C.M.O. Vide order dated 28-2-1994 was a legal, valid and proper order." Even after this, the respondent-State has not cared to file any additional reply to clarify the real point in issue." 6. On the basis of these findings, the Tribunal has categorically held that the dispute with respect to the seniority of petitioner and respondent No. 4 would be decided by the Commissioner of the Health Services by passing a speaking order. However, it is not clear whether any specific order was passed by the Commissioner of Health Services or not even after the decision of the Original Application of the petitioner on 15-2-1999. At least, nothing has been placed on record while the respondents by filing the return to this writ petition. 7. In terms of the policy made by the State Government for assessing whether a particular person is surplus or not, specific orders were issued on 19-5-1997. It was very categorically said that a list of surplus person is required to be prepared taking into account the posting in the district or the institutions and the said list is to be prepared in descending order meaning thereby the person who was posted by earlier order has to be treated as senior and those who have come by subsequent orders are to be treated as junior. Admittedly, the petitioner was posted in the year 1981 and right from 1981, she was working there. The respondent No. 4 was appointed in the year 1988 and she was working from that year, therefore, there was no doubt left that the petitioner was senior to respondent No. 4 and was not to be treated as surplus at all. It appears that because this finding was to be recorded, no orders were passed by the competent authority despite the direction of the Tribunal. The certificate in this respect was also issued by the Block Medical Officer, which specifically says that the petitioner was working right from 30-11-1981 in the Community Health Centre, Naogaon, and she has been regularised against the vacancy which occurred on account of superannuation of one Smt. S. Mathai. The certificate in this respect was also issued by the Block Medical Officer, which specifically says that the petitioner was working right from 30-11-1981 in the Community Health Centre, Naogaon, and she has been regularised against the vacancy which occurred on account of superannuation of one Smt. S. Mathai. The Chief Medical and Health Officer has also sent a letter in this respect categorically saying that in fact the respondent No. 4 is surplus, therefore, the salary of the petitioner is to be drawn against the post on regular basis and not as a surplus. This was the information with the respondents, yet the order impugned has been issued saying that only because the Minister In-charge has approved the shifting of surplus employees of the Health Department, they are to be transferred under the Policy of Rationalisation of surplus staff. The name of the petitioner is included in order, whereas, there is no reference with respect to the respondent No. 4. 8. From the return, it is also clear that only because the respondent Chi Medical and Health Officer has written that the petitioner was surplus, the o impugned has been issued. What enquiry was conducted by the respondent Chi Medical and Health Officer and on what basis he has said that mistake w; committed in stating that the respondent No. 4 was surplus, whereas, the petitioner is surplus has not been clarified in return, and only on the basis of thi information, the petitioner is sought to be transferred. Whether this was do: under the directions of any authority, or under the orders of the Court nothing i stated. However, the order Annx.R/6 was endorsed to one of the Govt. Advocate in the High Court at Jabalpur, which indicates that only on the basis of certain opinion obtained from the Government Advocate such a letter was written. Thus, it is clear that there was no application of mind and even the specific order of the Tribunal was not taken into consideration. The list so prepared and placed on record as Annx.R/5 is again faulty one. If there were six sanctioned posts, according to the date of appointment of the petitioner, she would be at Serial No. 2 of the list as she was appointed in the year 1981 and is working against the said post. The list so prepared and placed on record as Annx.R/5 is again faulty one. If there were six sanctioned posts, according to the date of appointment of the petitioner, she would be at Serial No. 2 of the list as she was appointed in the year 1981 and is working against the said post. The petitioner has been shown to be surplus only because her date of posting is shown to be 26-9-1998 and most probably this was done because after passing of the interim order in the Original Application filed by the petitioner in the year 1998, some accommodation of petitioner was done. This accommodation will not take away the right of the petitioner of claiming the benefit of service which she had already rendered in the said institution. The date of appointment/posting of the petitioner in the Community Health Centre, Naogaon, would be the date of her initial appointment i.e. 27-11-1981, and accordingly, she will be at Serial No. 2 of the persons who are working in the said place as all others have been appointed after the appointment of petitioner in the said Community Health Centre. This being so, the order impugned could not have been issued only because the respondent No. 4 was to be accommodated. The claim made by the petitioner thus was not rightly considered despite the order of the Tribunal. 9. When asked, the learned counsel appearing for the respondent-State and the respondent No. 4 have failed to explain as to how the respondent No. 4 was treated to be senior when the specific finding was recorded by the Tribunal in its order that the petitioner is senior to the respondent No. 4. Specially when the order of the Tribunal was not assailed anywhere and in fact, it has attained the finality. Again when it was specifically asked whether the respondent Commissioner, Health Services, has conducted any enquiry in terms of the directions of the Tribunal and has given any finding, nothing has been indicated by learned counsel for respondents. The return is silent on this point. It was categorically recorded by the Tribunal that the malfunctioning is going on and that the respondent-State is not vigilant even to file appropriate return in the litigation brought against it before the Courts of law. This is one of the glaring example of the said act of respondents. 10. The return is silent on this point. It was categorically recorded by the Tribunal that the malfunctioning is going on and that the respondent-State is not vigilant even to file appropriate return in the litigation brought against it before the Courts of law. This is one of the glaring example of the said act of respondents. 10. Normally, this Court would not have interfered in the order of posting and transfer as it has been categorically held by the Apex Court in scores of cases that an administrative order of transfer or posting is not required to be interfered with unless it is actuated on mala fides or has been issued by an authority not competent to do so, or is violative of the statutory Rules or Act. However, in the case of Somesh Tiwari vs. Union of India and others, (2009) 2 SCC 592 , the Apex Court has explained what would be the meaning of malice. As has been held, there are two types of malice, malice in fact and malice in law. If lawfully something which is required to be done is not done and something contrary to law is done by the State authorities, it would amount to malice in law. The respondent-State had made a Policy of Rationalisation of those employees who were surplus. For the purposes of assessing as to who is surplus and who is not, specific instructions have been issued. The entire consideration is to be done in terms of those instructions and if it is done, a list is prepared, only the surplus persons are required to be shifted from one place to another as per the requirement. As has been held hereinabove, the petitioner at any rate could not be termed as surplus in the Community Health Centre, Naogaon, nor could the respondent No. 4 be adjusted as regular one as there was no post available for her accommodation. Thus, in fact, the respondent No. 4 was to be treated as surplus and was required to be shifted. This action was taken long back in the year 1997, but mala fidely the change in the posting was done and the petitioner was shifted in place of respondent No. 4. Thus, in fact, the respondent No. 4 was to be treated as surplus and was required to be shifted. This action was taken long back in the year 1997, but mala fidely the change in the posting was done and the petitioner was shifted in place of respondent No. 4. This action was challenged in the Tribunal and the Tribunal has set aside the order of posting with the direction to assess and fixed the seniority of petitioner and respondent No. 4 in the Community Health Centre, Naogaon. Having failed to do so, at any rate, the respondents could not say that the petitioner was surplus and thus was required to be shifted nor could have issued the order impugned. If this is not the malice in law then what else would be, therefore, the act of the respondents is per se illegal. This is one of the cases in which this Court is compelled to exercise its extraordinary power under Article 226 of the Constitution of India for doing the right things as the same is not being done by the State authorities despite the long litigation. 11. Consequently, this writ petition is allowed. The order impugned dated 5-3-2012 insofar as it relates to petitioner is hereby quashed. The Chief Medical and Health Officer, Chhatarpur, is directed to allow the petitioner to continue on her post in the Government Community Health Centre, Naogaon. The respondent No. 3 is hereby commanded to issue an order of posting with respect to respondent No. 4 treating her surplus and transferring and posting her in the Sub Health Centre, Koutheha Gourihar, District Chhatarpur, in which place the petitioner was sought to be transferred by the impugned order. This is being ordered because the respondents have utterly failed to discharge their lawful duty, even order of a erstwhile law, enforcing authority like M. P. State Administrative Tribunal. 12. The writ petition is allowed to the extent indicated hereinabove. Petition allowed.