Sunil Kumar Singh, S/o late Birender Kumar Singh v. State of Jharkhand
2017-09-05
S.N.PATHAK
body2017
DigiLaw.ai
JUDGMENT : 1. The petitioner has approached this Court with a prayer for quashing the order as contained in Letter No. 935 (3) dated 16.09.2016, whereby the petitioner has been transferred from the post of Civil Surgeon, Ramgarh to Medical Officer, Sub-Divisonal Hospital, Barhi. Factual Matrix 2. The petitioner was appointed on the post of Medical Officer, Department of Health, Govt. of Bihar on 16.03.1988 and continuing as such with all satisfaction of the respondents authorities. It is stated that first promotion was granted to the petitioner in the year 1998 on the post of Assistant Civil Surgeon. The petitioner has completed more than 27 years of his service without any complain and now he is in grade pay of Rs. 10,000/- whereas the grade pay of Medical Officer is 5400-6600/-. Vide notification no. 01-20/12 1206 (3) dated 16.12.2014 issued under the signature of respondent No. 3, the petitioner has been posted at Ramgarh district as Civil Surgeon. Pursuant thereto, the petitioner joined the said post on 17.12.2014. But after three months, the respondent No. 4 issued an order as contained in notification No. 403 (3) dated 25.03.2015 by which, the petitioner has been demoted and transferred to the post of Medical Officer, Sub-Divisional Hospital, Chakradharpur, Chaibasa from Ramgarh, which is in capricious exercise of the administrative power. Thereafter, the petitioner has challenged the same by way of filing a writ petition being W.P.(S) No. 1251/2015 before this Hon'ble High Court and the same was disposed of vide order dated 22.04.2015 with a direction to the respondents to consider the individual discrepancy in the matter of transfer as claimed by the petitioner within a reasonable time preferably within a period of four weeks from the date of receipt of a copy of this order and interim order has been made absolute till passing the order on the representation of the petitioner to the Department. Pursuant thereto, the petitioner filed a representation along with order dated 22.04.2015 before the respondent No. 2, requesting therein to quash the transfer order in pursuance of order passed by this Hon'ble Court. Thereafter, the respondents-authorities vide letter No. 715 (3) dated 05.06.2015 passed a reasoned order rejecting the representation of the petitioner and earlier order as contained in notification no.
Thereafter, the respondents-authorities vide letter No. 715 (3) dated 05.06.2015 passed a reasoned order rejecting the representation of the petitioner and earlier order as contained in notification no. 403 (3) dated 25.03.2015 has been confirmed and the petitioner is further directed to join on new place of posting with a direction to the Regional Deputy Director (Health Services), North Chotanagpur Division, Hazaribagh to relieve the petitioner as per rule as soon as possible. 3. The petitioner again filed a writ petition being W.P.(S) No. 2464/2015, challenging the order as contained in letter No.715 (3) dated 05.06.2015. During the pendency of said writ petition, the respondents vide notification No. 825 (3) dated 30.06.2015 issued a transfer order by which other similarly situated persons, who have also challenged the earlier notification dated 25.03.2015, have been transferred to their original place of posting. However, the said writ petition has been dismissed vide order dated 22.07.2015. Aggrieved by the order dated 22.07.2015, passed in W.P.(S) No.2464/2015, the petitioner preferred a LPA being LPA No. 403/2015 and the same was allowed and disposed of vide order 14.03.2016 with a specific direction to the respondents that the aspects. With regard to length of the services of the petitioner, pay band and whether any other officer, who is working as Civil Surgeon at Chakradharpur, Chaibasa is falling from the same pay band as of the petitioner or not, needs to be reconsidered by the respondents-authorities as as to come to a conclusion that it would be in the fitness of the entire situation and other attending circumstances to transfer the petitioner as Medical Officer, Sub-Divisional Hospital, Chakradharpur, Chaibasa or to continue him as Civil Surgeon, Ramgarh, where he is presently posted and working or in the alternative, he is to be posted at some other particular place and to take a decision in this regard and until then the impugned order shall not be given effect. Thereafter, all of a sudden, the petitioner came to know that he has been transferred from the post of Civil Surgeon, Ramgarh to Medical Officer, Divisional Hospital, Barhi, Hazaribagh vide notification No. 294 (3) dated 18.03.2016 issued under the signature of the respondents. Thereafter, he preferred a Contempt Petition being Contempt case (Civil) No. 213 of 2016, the same was dropped with a liberty to challenge the reasoned order dated 31.03.2016, if he so likes, in accordance with law. 4.
Thereafter, he preferred a Contempt Petition being Contempt case (Civil) No. 213 of 2016, the same was dropped with a liberty to challenge the reasoned order dated 31.03.2016, if he so likes, in accordance with law. 4. It is the further case of the petitioner that he again filed a writ petition being W.P.(S) No. 1850 of 2016, which was allowed vide order dated 29.06.2016. The order passed by this Hon'ble Court in W.P. (S) No. 1850/2016 was not complied with then petitioner filed a Cont. petition being Cont. (Civil) No. 550/2016, in which he also prayed for release of his salary by the respondents. During the pendency of the aforesaid Cont. petition, the respondents authorities passed an order as contained in letter No.935 (3) dated 16.09.2016, wherein petitioner has been again transferred from the post of Civil Surgeon, Ramgarh to Medical Officer, Sub-Divisional Hospital, Barhi. Aggrieved by which the petitioner has preferred this present writ petition, challenging the transfer order dated 16.09.2016. 5. Mr. S. Shrivastava, learned counsel for the petitioner submits that the impugned order is illegally, arbitrarily and capricious exercise of administrative power. The order passed by the respondents for transfer and demotion of the petitioner on administrative ground is punitive in nature. Learned counsel for the petitioner further submits that the respondents have adopted pick and choose method just to give favourtism to their persons. Learned counsel for the petitioner has placed reliance in case of Sarvesh Kumar Awasthi in which the Hon'ble Apex Court has held that the transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrary, mala fide or an exercise against efficient and independent officer or at the instance of politician whose work is not done by the officer concerned. For better administration, the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration. On such circumstances, learned counsel for the petitioner prays for quashing of the orders dated 31.03.2016 and 16.09.2016 passed by the respondents-authorities and also prays for releasing of his salary. 6. Per contra, counter-affidavit has been filed by the respondents-authorities. Mr.
On such circumstances, learned counsel for the petitioner prays for quashing of the orders dated 31.03.2016 and 16.09.2016 passed by the respondents-authorities and also prays for releasing of his salary. 6. Per contra, counter-affidavit has been filed by the respondents-authorities. Mr. Rajesh Kumar, learned counsel appearing on behalf of the respondents justifies the impugned order dated 16.09.2016 and submits that there is no illegality in the impugned order and the same has been passed in accordance with law, taking into consideration the order dated 29.06.2016 passed in W.P.(S) No. 1850 of 2016 as well as the directions contained in the order dated 14.03.2016 passed in LPA No. 403/2015. Learned counsel for the respondents draws the attention of the Court towards several paragraphs of the counter-affidavit and submits that in the unreserved category, the name of the petitioner finds place at serial No. 837 in the seniority list and in the unreserved category so many other Medical Officers, whose seniority is up to 639 have not been promoted in the cadre post of Deputy Superintendent or its equivalent posts and hence the posting of the petitioner as a Medical Officer in the basic grade is fully justified. As the transfer of the petitioner has been made as per the provision of cadre Rule and no persons juniors to the petitioner or even other similarly situated persons, have been considered for promotion to the post of Civil Surgeon or even to the post of Deputy Superintendent or equivalent posts, no interference is required in this present writ petition. 7. Be that as it may, having gone through the rival submissions of the parties and in view of specific stand of the respondents-State that no juniors to the petitioners have been given promotion to the post of Civil Surgeon or even to the post of Deputy Superintendent or equivalent post and as the petitioner is much below in the seniority list and as such he could not be given promotion on the said post or considered for posting on the post of Civil Surgeon. No case is made out by the petitioner for appointment to the post of Civil Surgeon, by way of promotion or transfer.
No case is made out by the petitioner for appointment to the post of Civil Surgeon, by way of promotion or transfer. As the petitioner is getting salary of the promoted post as all the other similarly situated persons are getting, there is no illegality in the impugned order and the claim for posting to the post of Civil Surgeon is not tenable in the eyes of law. There is no illegality or any infirmity in the impugned order. This Court is of the considered view that the respondents have considered the observations made by this Court in Paragraph 6 of order dated 14.03.2015 passed in L.P.A. No. 403/2015. The apprehension of the petitioner that the transfer has been done as a punitive measure has already been turned down by the Division Bench in L.P.A. No. 403/2015 wherein, it was upheld that nothing adverse has been alleged against the petitioner for the purpose of transfer. It has also been stated in the counter-affidavit that no any other Officer, who is junior to the petitioner, has been considered for the post of Civil Surgeon or is working as a Civil Surgeon. Considering the entire aspect of the matter and the observations made in paragraphs 6 of the order dated 14.03.2015 passed in LPA No. 403/2015 and in the fitness of the entire situation, the impugned order dated 16.09.2016 has been passed and as such the order of transfer is fully justified and as such no interference is required in the present writ petition. Resultantly, there is no merit in this case and as such writ petition merits dismissal. 8. However, let it be made clear that since there was a Status Quo in this case vide order dated 25.07.2017, the petitioner is entitled for and should be accordingly paid the salary of the said intervening period in accordance with law. The petitioner is directed to join the transfer post within a period of ten days from the date of receipt of a copy of this order.