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2021 DIGILAW 98 (MP)

Arun Shrivastava v. State of M. P.

2021-02-03

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. 1. In the wake of unprecedented and uncertain situation due to outbreak of the Novel Corona virus (COVID-19) and considering the advisories issued by the Government of India, this petition has been heard and decided through video conferencing to maintain social distancing. 2. With the consent of the parties, the matter is finally heard. The present petition is being filed under Article 226 of the Constitution of India seek following reliefs:- "7.1. That, the impugned order Annexure P-1 dated 08.01.2021 passed by respondent no. 3 may kindly be set aside to the extent of petition. 7.2 That, other relief which is deem fit in the nature of case may kindly be awarded in favour of the petitioner." 3. The present petition is being filed being aggrieved by the transfer and relieving-cum-attachment order dated 08.01.2021, whereby the petitioner has been shifted/transferred from the High Court Civil Dispensary to the Civil Surgeon-cum-Chief Hospital Superintendent, Gwalior. It is submitted that the order impugned is contrary to the directions issued in the Public Interest Litigation being W.P. No. 1416/2017 (The High Court Bar Association Vs. The State of M.P. and Others) and contrary to the guidelines issued by NUHM as well as contrary to the M.P. Public Health Measurement/Rules. It is argued that the petitioner entered into service in the respondents' department in the year 1981 as a Medical Officer and was posted at various places at Civil Dispensaries and various health centers and performed their duties with utmost devotion and sincerity. He is having an unblemished service career. He is working in a Civil Dispensary High Court Gwalior has not been relieved till date. It is submitted that the Public Interest Litigation was filed before this Court which was registered as W.P. No. 1416/2017 dated 15.12.2017 wherein a demand was made for sanction of permanent post of Doctor in Civil Dispensary in the High Court premises and the District Court premises and on the basis, the order passed by this Court in the aforesaid Public Interest Litigation, the petitioner has been posted as Medical Officer in Civil Dispensary High Court Gwalior. It is argued that in pursuance to the parameter and guidelines issued by the Health Department at Civil Dispensary and Primary Health Center only Medical Officer can be appointed and posted not specialist at all and the specialist is only entitled to be posted where only minimum 60 bedded Civil Hospital are setup for Urban Health Institution as reflected from P/5 and P/6. It is argued that in the place of the petitioner one specialist has been appointed which is contrary to the guidelines. As per the transfer policy on kinds of attachments have been completely abolished by the State Government, therefore, the transfer/attachment of the petitioner is contrary to the guidelines of transfer policy and also is contrary to the directions given by this Court in W.P. No. 1416/2017. It is submitted that he has relied upon judgment passed by the Supreme Court in the case of Subhash Roy Vs. Coal India Limited, 2009 (1) MPJR 71 where it has held that the guidelines as well as the transfer policy are having the course of law, therefore there are required to be considered. He has preferred a detailed representation to the respondents authorities for redressal of his grievances but of no consequence, therefore, he knocked the door of this Court for redressal of his grievances. He prayed for quashment of the impugned order. 4. Per contra, learned counsel for the State by filing a response to the petition has denied all the averments made in the writ petition and has contended that the earlier public interest litigation was filed before this Court seeking a direction to the State of Madhya Pradesh and its functionaries to sanction permanent posts of doctor and adequate nursing staff at dispensary in premises of the High Court Bench at Gwalior as well as the District and Sessions Court at Gwalior. The State Government after considering the said demand has decided to establish a permanent dispensary having adequate staff within the premises of the High Court Bench at Gwalior and considering the decision taken by the State Government the PIL was disposed of vide order dated 15.12.2017 without adjudication on merits. The State Government after considering the said demand has decided to establish a permanent dispensary having adequate staff within the premises of the High Court Bench at Gwalior and considering the decision taken by the State Government the PIL was disposed of vide order dated 15.12.2017 without adjudication on merits. It is pointed out that there was no observation/direction given by this Court in the public interest litigation to post the Medical Officer like the petitioner in the dispensary at Gwalior rather it was left open discretion of the State authority to post the responsible officer. The petitioner was posted in High Court Dispensary, Gwalior as Medical Officer on dated 08.12.2017 and he has been working as Medical Officer since the date of his posting. It is pointed out that he is an employer of the State Government and the Government is having full right to post the petitioner as per his requirement. The petitioner has been posted by the impugned order under the Civil Surgeon-cum-Chief Superintendent of Hospital District Gwalior vide order dated 08.01.2021. It has been mentioned in the impugned order that the petitioner has been relieved on the same day. It is pointed out that the transfer and posting is a condition of services and an employee doing a government job is required to comply with the transfer orders as required. It is argued that the law with respect to the transfer and posting of an employee is well settled by the Division Bench of this Court in the case of R.S. Chaudhary Vs. State of M.P. reported in ILR (2007) MP 1329 2007 and further in the case of Mridul Kumar Sharma Vs. State of M.P. Reported in I.L.R. (2015) MP 2556. It is also pointed out that the transfer is incident of service and the employee working in the Government department his oblige is duty bound to comply with the transfer orders. The petitioner is working at the present place of posting since dated 08.12.2017 and as per the requirement the petitioner has been shifted/posted to work under the Civil Surgeon cum-Superintendent of Hospital Gwalior. Even otherwise it is not a transfer and it is only a posting order of the petitioner and he has been posted in the same district i.e. Gwalior itself. Even otherwise it is not a transfer and it is only a posting order of the petitioner and he has been posted in the same district i.e. Gwalior itself. No illegality is committed by the authorities in shifting the petitioner who has worked in the Civil Dispensary High Court Premises Gwalior for a considerable long time. The only relief which could have been granted to the petitioner is that the representation submitted by the petitioner shall be considered and decided by the authorities within a time bound frame. Counsel for the State has placed reliance upon the judgments passed by the Hon'ble Supreme Court in the cases of Union of India Vs. S.L. Abbas, AIR, 1993 SC 244; Rajendra Roy Vs. Union of India, 1993 (1) SCC 148 ; State bank of India Vs. Anjan Sanyal and Others, 2001 (5) SCC 508 : Airports Authority of India Vs. Rajeev Ratan Pandey & Others, 2009 (8) SCC 337 . 5. Heard the learned counsel for the parties and perused the record. 6. From the perusal of the record, it is seen that the petitioner is working in the Civil Dispensary, New High Court Premises Gwalior. Public Interest Litigation was filed before this Court which was registered as by the Member of the High Court Bar Association, Gwalior asking for developing a Civil Dispensary High Court Premises and District Court Premises at Gwalior. On notices being issued the State government has taken a decision to develop the dispensaries in High Court premises Gwalior and on the undertaking given by the authorities in the PIL the petition was disposed of vide order dated 15.12.2017. No direction was given by this Court. Only on a undertaking given by the authorities of the State government petition was disposed of. Although the petitioner has been posted at High Court Premises Gwalior as Medical Officer but the fact remains that there was no such direction of posting of Medical Officer at Civil Dispensary Gwalior. An expert has been posted in the place of the petitioner at Civil Dispensary, High Court Premises Gwalior which is in the interest of i.e. Advocates who are functioning at Gwalior and a full time expert has been deployed. An expert has been posted in the place of the petitioner at Civil Dispensary, High Court Premises Gwalior which is in the interest of i.e. Advocates who are functioning at Gwalior and a full time expert has been deployed. It is a domain of the employer to post the particular employee as per the requirement of work the petitioner was required to work at J.A. Hospital Gwalior, therefore, he has been posted as Medical Officer under the Civil Surgeon-cum-Chief Hospital Superintendent, District Gwalior. Transfer being a condition of service has been held by the Division Bench of this Court in the cases of R.S. Chaudhary and Mridul Kumar (supra). It is a settle proposition of law that the transfer orders can only be interfered in very limited conditions if there is any gross violation of rules and regulations or if a transfer indirectly effects the seniority of employee or the transfer being an outcome of malafide on the part of the respondents. No such ground is being raised by the petitioner in the present petition. The petitioner could not point out that his seniority will be affected by posting the petitioner under Civil Surgeon-cum-Chief Hospital Superintendent District Gwalior. In such circumstances no interference is called for in the transfer/posting order as far as only relief which can be extended to the petitioner is to resubmit a detailed representation to the Senior Authorities seeking for redressal of his grievances. Thus, if such a representation is submitted by the petitioner to the respondent no. 2 and 3, they are directed to consider and decide the representation and communicate the outcome of the same to the petitioner within a period of thirty days from the date of receipt of the certified copy of this order. The authorities are at liberty to decide the representation on its own merits. 7. The petition stands disposed of with the aforesaid observation. 8. E-copy/certified copy as per rules/directions.