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2015 DIGILAW 1530 (JHR)

Ambika Prasad Mandal v. State of Jharkhand

2015-12-09

APARESH KUMAR SINGH

body2015
Order : Heard learned counsel for the parties. 2. By the impugned notification, Annexure-3 being memo no. 1414(3) dated 24.11.2015, petitioner has been transferred from the post of Civil Surgeon, Jamtara to Sahibganj on the post of District Leprosy Eradication Officer. Petitioner has assailed the same on the ground that he has been placed below a person at serial no. 609 in the gradation list, Annexure-6, namely Bhagwat Marandi, Civil Surgeon, Sahibganj while the petitioner's place in the seniority list is 601. This transfer has been made within 5 months of his posting by the previous notification dated 30.06.2015 whereunder he was transferred from the post of District Leprosy Eradication Officer, Dhanbad to the present post in the interest of administration. 3. It is submitted that petitioner would be placed on a post equivalent to PB-III with Grade Pay Rs. 6600/- now though he was working as Civil Surgeon, Jamtrara in the Pay Band-III with Grade Pay-Rs. 7600/-. Petitioner is presently getting Grade Pay of Rs. 10,000/- which is equivalent to the post of Director-In- Chief as per the Jharkhand State Health Services (Appointment, Promotion and Other Service Conditions) Rules, 2010. This impugned transfer is also in the nature of a punishment on the report of the Deputy Commissioner, Jamtara enclosed by the respondent at Annexure-A to their counter affidavit though it is the Regional Deputy Director, Health Services, who is the Controlling and Supervising Authority of officers posted as Civil Surgeon-cum-Chief Medical Officer of a district vide resolution dated 24.05.2006, Annexure-5. Petitioner has enclosed certain correspondences undertaken with the Deputy Commissioner, Jamtara, Annexure-9 dated 03.09.2015 reporting acts of irregularities against some employees of the RBSK Scheme in Jamtara. He has also written to the Hon'ble Chief Minister of the State and the Principal Secretary of the Department vide letter no. 1450 dated 31.10.2015. Another letter dated 20.11.2015 bearing memo no. 778 is also enclosed as Annexure- 11 alleging certain acts of conspiracy and irregularities in the appointment of ANM which on being enquired was strongly resisted by certain employees of the department amounting to interference in the official discharge of his duties. It is submitted that the impugned order requires interference. 4. Learned counsel for the State has placed the contents of the counter affidavit and submitted that there are several officers of the same batch such as 1983 batch to which the petitioner belongs totalling 127 Medical Officers. It is submitted that the impugned order requires interference. 4. Learned counsel for the State has placed the contents of the counter affidavit and submitted that there are several officers of the same batch such as 1983 batch to which the petitioner belongs totalling 127 Medical Officers. Both the Civil Surgeon, Saheganj i.e. Bhagwat Marandi and the petitioner belong to the same batch. Moreover there are 19 Medical Officers in 1979 batch and 178 Medical Officers in 1981 batch, some of them have also retired. All these officers cannot be posted as Civil Surgeon-cum-Chief Medical Officer as the number of districts are only 24. Seniority is not the lone criteria for such posting as the administrative requirement of jobs require consideration of the performance and competence of the persons also to be taken into account. No regular promotion has been granted to any Medical Officer in the State and all these posting are in the nature of working arrangement in their own scales of pay. Process of promotion to Doctors is under consideration after Government has approved proposal to relax Time Bound Requirement (Kalavadhi). Petitioner by virtue of his posting as District Leprosy Eradication Officer, Sahibganj could not be suffering any demotion and would be working in his own scale of pay. 5. Counsel for the State also refers to the report of the Deputy Commissioner, Jamtara relating to repeated strikes being undertaken by the Non-Gazetted Employees Association with a grievance against the work culture of the petitioner. He submits that due to conciliation by higher officials like the Deputy Commissioner and the Regional Deputy Director, Health Services Santhal Pargana, these strikes were recalled. Therefore, taking into account the larger public interest and the interest of administration, petitioner's services has been placed at a different place which the department is well within its jurisdiction to do so. Therefore, the impugned notification does not warrant any interference. 6. It is also pointed out that the person namely Mahavir Prasad Gopalika, who belongs to 1981 batch and was posted as Civil Surgeon, Jamtara in place of the petitioner by the same impugned notification has already joined on 01.12.2015 on the date on which status quo order was passed. However, because of the order of status quo, petitioner has also remained at the same place and not proceeded to submit joining at the transferred place. However, because of the order of status quo, petitioner has also remained at the same place and not proceeded to submit joining at the transferred place. Therefore, interim order may be vacated and the writ petition should be dismissed. 7. I have heard learned counsel for the parties and considered the submission made in light of the relevant facts pleaded. It would not be out of place to observe at the outset that the person, who has been posted in place of the petitioner, has not been impleaded as party respondent in the instant case though he is a necessary party. The writ petition would suffer on account of non joinder of party. It appears further that this impugned exercise has been undertaken by the respondent- Department largely on account of the reason that there were administrative issues on the place where the petitioner was working as Civil Surgeon, Jamtara leading to interruption in the regular functioning of the Health Department in the district. Apparently, the respondents have chosen to place another person in place of the petitioner as Civil Surgeon, Jamtara for administrative reasons on that account by way of working arrangement. While considering the other grounds of demotion and working under a Junior Officer urged on the part of the petitioner, it is to be observed that petitioner and all other Medical Officers in the State are working in the same basic cadre post though they are enjoying different grades of pay on account of their length of service and financial up-gradation granted from time to time. It would also not be possible for the respondent department to post all officers of any particular batch or other batches as head of the Department in the district i.e. on the post of Civil Surgeon-cum-Chief Medical Officer. Petitioner has been posted as District Leprosy Eradication Officer, Sahibganj, a post on which he was earlier also posted as District Leprosy Eradication Officer, Dhanbad before he was transferred vide notification dated 30.06.2015 to Jamtara. The impugned transfer does not amount to demotion as no substantiative promotion has been given to him on the post of Civil Surgeon by the respondent-department. He would also not suffer in any manner in the scale of pay. 8. The impugned transfer does not amount to demotion as no substantiative promotion has been given to him on the post of Civil Surgeon by the respondent-department. He would also not suffer in any manner in the scale of pay. 8. Therefore, this Court does not consider it proper to interfere in the impugned notification of transfer considering the legal position that transfer is an incidence of service and the employer is well within its rights to effect the same in public interest and in the interest of administration. 9. Petitioner, however, seems to have reported certain acts in respect of employees of the District to the Deputy Commissioner, Jamtara as also to the respondent-department. The approach of the petitioner in directly corresponding with the Hon'ble Chief Minister of the State is, however wholly unwarranted. Such issues can be examined by the respondent-department to take corrective steps in respect of any such incidence of erring conduct by one or other employee after due compliance of the principle of natural justice and in accordance with law. However, for the reasons discussed hereinabove, this Court is not inclined to interfere in the impugned order in exercise of its discretionary jurisdiction. 10. The writ petition is, accordingly, dismissed. Interim order dated 01.12.2015 stands vacated.