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Jharkhand High Court · body

2017 DIGILAW 710 (JHR)

Raghunath Prasad Singh v. State of Jharkhand

2017-04-19

ANANDA SEN

body2017
ORDER : In these batch of writ applications, the petitioners are challenging their respective orders of transfer issued by the Deputy Secretary, Health, Medical, Education and Family Welfare Department, Government of Jharkhand, by which, the petitioners have been transferred from Rajendra Institute of Medical Sciences (hereinafter to be referred as ‘RIMS’). 2. All these petitioners are at present are serving in RIMS and by virtue of their respective transfer orders, they have been transferred out of RIMS. The main contentions of the petitioners are that the transfer orders are illegal and have been passed by the State, which has got no authority to transfer them. They claim that they are the employees of the RIMS, which is an autonomous statutory body and their employer is RIMS, so the State authorities have got no jurisdiction to transfer the petitioners. 3. On the other hand, learned counsel for the State submits that the petitioners are not the employees of RIMS and, as such, they can be transferred by the impugned order of the State. 4. Learned counsel appearing for the RIMS submits that the State Government can transfer the Doctors, who are the employees of the State but they cannot transfer any Doctors, who are the employees of RIMS. 5. It is well settled principle of law that only an employer has right/ power to transfer its employees. An employer cannot transfer any person, who is not his employee. Thus, it is to be first decided in this case whether the petitioners are employees of RIMS or not. If it is held that the petitioners are the employees of RIMS then the State Government has got no jurisdiction to transfer them, but on the contrary if the petitioners are not the employees of RIMS, rather are the employees of the State Government, then the State Government has got the jurisdiction to transfer them. 6. Rajendra Institute of Medical Sciences (RIMS) was established by virtue of an Act known as Rajendra Institute of Medical Sciences, 2002. Section 14 (v) of the said Act provides that the existing employees of Nursing college and Nursing schools and Rajendra Medical College and Hospital (RMCH), will be the employees of the State Government till, as per the Rules, within specified time frame, they opt to become an employee of RIMS. This means, till their absorption they will be the employees of the State Government. This means, till their absorption they will be the employees of the State Government. Section 31 of the said Act gives power to make Rules. Similarly, Section 32 gives power to make Regulations. 7. In terms of the power vested under Section 31, Rules of the Rajendra Institute of Medical Sciences was framed. Rule 11 of the said Rules provides condition for making appointment to the several posts of RIMS. Rule 19 provides for absorption of employees. Rule 19 provides that within one year from coming into force of the Rules the existing employees have to make applications for absorption or else their services would be repatriated. These provisions clearly mean that if an employee, who was working in RIMS, does not opt to become an employee of RIMS within the specified time provided in the Rules, they will be deemed to be the employees of the State. 8. In terms of Section 32 of the Act, the Regulations were framed, which is known as Rajendra Institute of Medical Sciences Regulations. Clause 2 (xii) of the said Regulations defines employees of the RIMS. As per the said definition, the persons, who have been absorbed in the RIMS are the employees of the RIMS. Clause 12(ii) provides that all the persons, who have been appointed by RIMS in the sanctioned notified post, will be the employee of RIMS. Further Clause 12(iii) provides that the employees, who were posted by the Government in the RIMS prior to 2002 (establishment year of RIMS) and continued thereafter, will work in RIMS till their superannuation. Further, it provides that they will get their benefit of promotion in RIMS but they will not get any deputation allowances. Clause 12(iv) further provides that no person will be posted in RIMS from outside nor anyone of RIMS can be moved out. Thus, as per this Regulation, there are two types of employees of RIMS; one who are the direct employee and second the persons who are absorbed as per Rule 19 of the Rules. 9. As mentioned earlier, Rule 19 provides that a person, who is working in RIMS must give his option within one year and if any one fails to give such option within one year, then their services will be returned to the State, to be posted at a suitable place. 9. As mentioned earlier, Rule 19 provides that a person, who is working in RIMS must give his option within one year and if any one fails to give such option within one year, then their services will be returned to the State, to be posted at a suitable place. Thus, as per the said Rule if a person does not opt to become an employee of RIMS, he will remain as a State Government employee and his services will be returned to the State for being posted at any other place. There is no ambiguity in the aforesaid provision, but an anomaly has cropped up in view of Regulation 12(iii) of the Regulations. Regulation 12 defines the employees of the RIMS. Regulation 12 (iii) provides that any person, who is posted in RIMS before 2002 and continued thereafter and gives affidavit by virtue of administrative order they will be deemed to be deputed in RIMS and will get all the promotions and benefits of RIMS. This means a third category is created, who will be deemed to be an employee of RIMS though the Rules do not provide for such. This category of person though deemed to be deputed in RIMS, will get all the promotional benefits of RIMS means they can be treated to be an employee of RIMS. 10. Now the question is whether RIMS can be said to be an employer of these persons. From bare perusal of Rule 19, primafacie these groups of persons cannot be said to be the employees of RIMS, whereas by virtue of Clause 12 of the Regulations, they are to be treated as the employees of RIMS. Thus, there is a conflict between the Rule 19 and Clause 12 (iii) of the Regulations. The Act provides for Rule making power and also the power to make Regulations. Thus, both of these enactments are by virtue of power conferred under the Act. 11. Since there is conflict between the Rules and the Regulations and it will go to the root to decide as to who are the employees of RIMS and keeping in view the nature of conflict, this Court feels it fit and proper to refer these matters before a Division Bench for decision. Accordingly, let all these matters be placed before an appropriate Division Bench with the leave of Hon’ble the Chief Justice.