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2017 DIGILAW 997 (JHR)

Sudipto Roy v. State of Jharkhand

2017-06-28

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT : 1. Heard learned counsel for the petitioner, learned counsel for the Rajendra Institute of Medical Sciences (hereinafter referred to as “RIMS”), as also learned counsel for the State. 2. The petitioner is aggrieved by the notification bearing No. 293(3) dated 18.03.2016, issued by the State Government, in its Department of Health, Medical Education and Family Welfare, whereby the petitioner along with other Medical Officers were transferred. The name of the petitioner finds place at serial No. 43 of the said Notification, whereby the petitioner, who was posted as Medical Officer, in RIMS, Ranchi, has been transferred as District Reproductive and Child Health Officer, at Dhanbad. 3. The sole contention of the petitioner challenging the transfer order is that the petitioner being an employee of RIMS, Ranchi, which is an autonomous body, the State Government has no jurisdiction to transfer him. 4. The facts giving rise to the writ petition lie in the short compass. The petitioner, who was earlier posted as Medical Officer in the State Government, was posted as Medical Officer in the erstwhile Rajendra Medical College and Hospital, (in short RMCH), Ranchi, on 31st August, 2001. Thereafter Rajendra Institute of Medical Sciences Act, 2002, (herein after referred to as the ‘RIMS Act’) was enacted, which came into effect w.e.f. 15th August 2002. By virtue of the RIMS Act, RIMS Ranchi, was established at the place of the erstwhile Rajendra Medical College and Hospital, Ranchi, and was made an autonomous body. Section 14(v) of the RIMS Act provided that the RIMS shall utilize the services of non-teaching and teaching staff posted in the erstwhile RMCH, and all such employees shall continue to be the servants of the State Government until they do not exercise their option to be absorbed in the RIMS, within the prescribed time frame, in accordance with the Rules framed under the RIMS Act. Rajendra Institute of Medical Sciences Rules, 2002, (herein after referred to as the ‘Rules’) was also promulgated in the year 2002 and according to Rule 19 thereof, all the Government servants posted in RIMS, Ranchi at the time of its inception in the year 2002, were given the option to exercise their option for absorption of their services in the Institute within one year. The services of all such Government servants who chose not to exercise their option within the prescribed period, were to be returned to the State Government for being posted elsewhere by the Health and Medical Education Department of the Government of Jharkhand. 5. According to the petitioner's case, the petitioner, that at the time of inception of RIMS in the year 2002, was working at RIMS, Ranchi, and he exercised his option to continue his service in RIMS, Ranchi, on 05.10.2002, vide Annexure-1/1 to the writ petition. The Governing Body of the RIMS, Ranchi, accepted the options exercised by all such employees vide its notification bearing No. 123 dated 08.01.2005 stating that the services of all such employees are absorbed in RIMS Ranchi, with effect from 15.08.2002. The said notification has been brought on record as Annexure-7 by way of supplementary affidavit. Thereafter the State Government, in its Department of Health, Medical Education and Family Welfare, by its notification contained in Memo No. 144(7B) dated 08.07.2008, brought on record as Annexure-8, approved the resolution of the Governing Body of the RIMS Ranchi, as notified vide notification No. 123 dated 08.01.2005. Thus, the case of the petitioner is that the petitioner became the employee of the RIMS Ranchi, which is an autonomous body, with effect from 15.08.2002, and the State Government had no authority to transfer and post the petitioner to any post outside the RIMS Ranchi. 6. It has also been stated in the writ petition that vide Ananexure-2 dated 27.12.2012, the petitioner was transferred along with other State Government officials, by the State Government and posted as Medical Officer at Sadar Hospital, Dumka. The petitioner challenged his transfer by filing separate writ application, W.P.(S) No. 7 of 2013, in which, by order dated 11.1.2013, the operation of the impugned notification was stayed. Ultimately, the State Government, in its Department of Health, Medical Education and Family Welfare, vide notification No. 455(3) dated 04.04.2013 as contained in Annexure-4 to the writ petition, recalled the said transfer order and the petitioner was allowed to continue in RIMS Ranchi, where the petitioner was continuing uninterruptedly, and ultimately, the impugned notification No. 293(3) dated 18.03.2016 has been issued, whereby the petitioner was again transferred as District Reproductive and Child Officer at Dhanbad, which has been challenged in the present writ application. 7. 7. Learned senior counsel appearing for the petitioner has submitted that the impugned notification as contained in Annexure-6 to the writ petition, so far as it relates to the petitioner, is absolutely illegal and cannot be sustained in the eyes of law. Learned senior counsel has submitted that by virtue of the notifications dated 08.01.2005 and 08.07.2008 issued by RIMS Ranchi and the State Government respectively, as contained in Annexures-7 and 8, the services of the petitioner stood absorbed in RIMS Ranchi, which is an autonomous Body and, as such, the State Government had no authority to transfer the petitioner outside the RIMS, Ranchi. In support of his contention, learned senior counsel placed reliance upon the decision of this Court in (Dr.) Lalit Minz v. The State of Jharkhand, reported in 2004 (2) JCR 181 (Jhr), wherein the law has been laid down as follows:— “7. As noticed herein above, after the RIMS became autonomous body under the Act and power of appointment of teaching and non-teaching staffs having been vested with the Selection Committee, the State Govt. has no jurisdiction to transfer and post the Medical Officers to RIMS. --------------.” 8. Learned Sr. Counsel has further submitted that the vires of the RIMS Act and the Rules had been challenged before this Court in Dr. Krishna Kumar Lal v. State of Jharkhand, reported in 2008 (3) JCR 221 (Jhr), wherein this Court has upheld the vires of the RIMS Act and the Rules in the following terms:— “20. No doubt that the writ petitioner as well as the Doctors, who were working in RMCH before coming into force of the RIMS Act, 2002 belong to the same cadre but the Doctors, who were posted and were working in RMCH on the date on which the RIMS Act came into force, constituted a different class than those Doctors, who were posted in other medical colleges in the State of Jharkhand. The Doctors, who were working in RMCH on the date the RIMS Act came into force, were part of the work force of RMCH and, therefore, option was invited from those Doctors and employees, who were the work force in RMCH whereas the writ petitioner was the part of the work force of M.G.M. Medical College and Hospital, Jamshedpur and, therefore, he belonged to a different class. Therefore, it cannot be said that the petitioner or any similarly situated person have been discriminated by not giving them option for absorption in RIMS. Therefore, in our view, even after applying the twin tests as laid down by the Supreme Court in the decision noticed above, we do not find any reason to hold that the provisions of RIMS Act and the Rules under challenge are in any way violative of Article 14 of the Constitution of India.” 9. Placing reliance on these decisions, learned senior counsel appearing for the petitioner submitted that since the petitioner's service stood absorbed in the RIMS Ranchi, which is an autonomous body, the impugned notification, transferring and posting the petitioner as District Reproductive and Child Health Officer, Dhanbad, is absolutely illegal and wholly without jurisdiction, which cannot be sustained in the eyes of law. 10. Learned counsel appearing for the RIMS Ranchi has admitted the facts relating to the posting of the petitioner in RIMS Ranchi at the time of inception of the Institute, and absorption of his service in RIMS. Learned counsel for the RIMS supported the cause of the petitioner and reiterated that the State Government had no authority to interfere with the services of the petitioner, or any employee of RIMS, whose services stood absorbed in RIMS Ranchi, by virtue of the notifications as contained in Annexures-7 and 8. 11. Learned counsel appearing for the State on the other hand opposed the prayer of the petitioner and has submitted that the State Government having the overall control over the RIMS, shall have all authority either to transfer and post the Medical officers from outside, in the RIMS, or from RIMS, to elsewhere. Learned counsel for the State though tried to support his contention on this general analogy only, but learned counsel could not point out any provision either in the RIMS Act or in the Rules, to show the source of the power of the State Govt. for exercising the power of such transfers. 12. Having heard learned counsels for both the sides and upon going through the record, we find that only question to be decided in this writ application is as to whether the State Government had the authority to transfer and post the petitioner outside the RIMS Ranchi, once the service of the petitioner stood absorbed in RIMS Ranchi. 12. Having heard learned counsels for both the sides and upon going through the record, we find that only question to be decided in this writ application is as to whether the State Government had the authority to transfer and post the petitioner outside the RIMS Ranchi, once the service of the petitioner stood absorbed in RIMS Ranchi. This question is no more res-integra, and has been decided by this Court (Dr.) Lalit Minz's case (supra) and in Dr. Krishna Kumar Lal's case (supra). In view of the fact that admittedly the petitioner was posted as Medical Officer in the RIMS since the very inception of RIMS in the year 2002, he exercised his option to continue his service in RIMS, Ranchi, on 05.10.2002 vide Annexure-1/1 to the writ petition, and the Governing Body of the RIMS, Ranchi, accepted the option exercised by all such employees vide its notification bearing No. 123 dated 08.01.2005 absorbing their services in RIMS Ranchi, with effect from 15.08.2002, which was also approved by the State Government, in its Department of Health, Medical Education and Family Welfare, by notification contained in Memo No. 144(7B) dated 08.07.2008, the service of the petitioner stood absorbed in the RIMS Ranchi, with effect from 15.08.2002. RIMS Ranchi, being an autonomous body under the RIMS Act, the State Government had no jurisdiction to transfer or post the petitioner from the RIMS Ranchi to elsewhere. 13. In that view of the matter, we are of the considered view that the impugned Notification bearing No. 293(3) dated 18.03.2016 issued by the State Government, in its Department of Health, Medical Education and Family Welfare, as contained in Annexure-6 to the writ petition, so far it relates to the petitioner, whose name appears at serial 43, is absolutely illegal and wholly without jurisdiction, which cannot be sustained in the eyes of law. The impugned notification, is accordingly, quashed to the extent indicated above. 14. This writ application is accordingly, allowed.