Purshottam Kumar Pandey vs State Of U.P. And Others
2012 Latest Caselaw 5486 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 13.09.2012
 
Delivered on 06.11.2012
 
Court No. - 7
 
Case :- WRIT - A No. - 35062 of 2012
 
Petitioner :- Purshottam Kumar Pandey
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Arvind Kumar Shukla,Rita Shukla
 
Respondent Counsel :- C.S.C.,Rahul Mishra
 

 
Hon'ble Sudhir Agarwal,J.

1. The petitioner has sought a writ of mandamus commanding respondent no. 3 to act in compliance of order dated 07.06.2012 passed by Additional Director, Medical Health and Family Welfare, Azamgarh (hereinafter referred to as the "AD, Azamgarh") containing a direction that in the upgraded Primary Health Centers, senior most medical officer posted shall function as Incharge Medical Officer and at the upgraded Primary Health Centers/Community Heath Centers, the clerks already appointed and posted shall maintain the record and discharge administrative and financial duties, as per the directions of Incharge Medical Officer. The additional clerk, if any, should be transferred elsewhere and while doing so, seniority should be taken care of.

2. The dispute relates to Primary Health Center (Block Level) Bansdih, Ballia (hereinafter referred to as the "PHC, Bansdih"). It is said that it was upgraded vide Government Order dated 31.10.1986 whereby following posts were sanctioned thereat:

Sl. No.

Name of Post

No. of post

Surgeon

Radiologist

Gynaecologist

X-ray Technician

Pharmacist (Trained)

Lab Technician

Staff Nurse

Class IV (One ward-boy, two sweepers, one washer-man, one cook )

These posts were in addition to existing posts in PHC Bansdish for the reason that no document is shown to this Court to suggest about cessation or abolition of existing posts after creation of abovementioned posts.

3. The Government order also says that now PHC Bansdih shall be made and known as CHC.

4. No post of Superintendent/Incharge Medical Officer was sanctioned. Prior to aforesaid Government order, in PHC, Bansdih, there were two medical officers, two ward-boys, one sweeper/chowkidar, one pharmacist and one lab technician besides other block level posts. One post of clerk was also sanctioned.

5. The petitioner was working thereat as Junior Clerk since 2006.

6. The Chief Medical Officer, Ballia (hereinafter referred to as the "CMO") issued an order on 05.02.2011 directing that Sri Shashikant Singh, respondent no. 6, a Junior Clerk in the office of Zila Dristihinta Niwaran Adhikari, Ballia, in addition to his duties, shall look after the work of accounts (N.R.H.M.) of Community Health Center, Bansdih Ballia (hereinafter referred to as the "CHC") and the said charge of CHC, Bansdih shall be handed over by petitioner to respondent no. 6. By another order dated 12.02.2011 the CMO, Ballia directed that petitioner who is working as Junior Clerk, PHC Bansdih, shall discharge the function relating to accounts of CHC, Agur (Bansdih) Ballia. As there was only one health center, i.e., the earlier health center upgraded as CHC, Bansdih in which petitioner was working, he made a representation to respondent no. 3 to seek clarification but received no reply. He also made a complaint on 06.01.2012 to CMO about illegal demand of bribe and threats extended by Sri Daya Shanker, Senior Clerk in the office of CMO, Ballia. A similar complaint was lodged to AD, Azamgarh also. Thereafter he approached this Court in Writ Petition No. 10757 of 2012 which was disposed of on 28.02.2012 with the following order:

"Petitioner has rushed to this Court contending therein that he is entitled to function at upgraded Primary Health Centre/Community Health Centre Bansdeeh Ballia but illegally Shashikant Singh, Junior Clerk has taken over the charge in question. Petitioner has already represented the matter before Additional Director, Medical� Health and Family Welfare Services, Azamgarh.

Consequently, in the facts of the case Additional Director, Medical� Health and Family Welfare Services, Azamgarh is directed to examine the claim which has been set up by the petitioner in accordance with law preferably within next two months from the date of presentation of certified copy of the order passed by this Court.

With the above direction present writ petition is disposed of."

7. Pursuant thereto the petitioner made a further detailed representation (Annexure-6 to the writ petition) stating that there is no existence of unit like CHC Agur (Bansdih) Ballia and the entire exercise has been undertaken in furtherance of illegal transactions involving huge sum to the Senior Clerk, Daya Shankar so as to oust the petitioner from the office, he is working, and to post him to an office which is non est. It is pointed out that in the accounts of Sri Daya Shankar maintained in Union Bank of India and State Bank of India, Ballia there are transactions of Rs. 70 to 75 lacs in the last three years. Besides above, he (Daya Shanker) has also amassed huge immoveable property worth crores of rupees. AD, Azamgarh thereupon passed the order dated 07.06.2012 taking the view that there was only one health center which was upgraded at Bansdih and there is no new establishment. Nothing was said about the alleged misdeeds of Senior Clerk, Daya Shanker.

8. Looking to the aforesaid facts and circumstances, the respondents were directed to submit their reply to clarify the facts.

9. A counter affidavit has been filed on behalf of respondents sworn by Dr. Pradeep Kumar Singh, CMO, Ballia. He claims to have joined as CMO, Ballia on 24.07.2012. It is stated that after AD, Azamgarh's order, the petitioner made a representation to Director General, Medical Health U.P., Lucknow (hereinafter referred to as the "DGMH") on 19.06.2012. Thereupon a report was obtained from CMO who informed that there are two centers, namely PHC, Bansdih and CHC, Bandish working as two different units situated at a distance of about four kilometers. A copy of alleged representation of petitioner dated 19.06.2012, CMO's letter dated 30.06.2012 and order of DGMH dated 05.07.2012 is said to have been filed as Annexure-CA-1. However, a perusal thereof show that alleged representation dated 19.06.2012 is a representation made by State Employee's Joint Council, Uttar Pradesh through its Senior Vice President, Sri Yaduveer Singh. It is addressed to Principal Secretary, Medical Health and Family Welfare whereupon he made an endorsement directing DGMH to contact CMO, Ballia and take appropriate action thereupon.

10. The CMO's letter dated 30.06.2012 shows that PHC was upgraded by Government Order dated 31.10.1986 but due to paucity of space CHC was established at Agur, i.e., 4 kms. away from PHC and since then both centres at Bansdih and Agur are functioning separately with posting of separate employees. He also refers to Director's order dated 02.11.1995, where PHC and CHC both if have been established in same campus, to reduce land cost, such two centres shall function separately. He further reports that earlier charge of both centres was given to Dr. S.K. Tiwari due to paucity of medical officers but subsequently the State Government by order dated 05.08.2011 directed that Dr. Anil Kumar Singh shall function as Incharge Medical Officer at PHC, Bansdih. Appointment of Dr. Anil Kumar Singh was challenged by Dr. S.K. Tiwari in Writ Petition No. 48734 of 2011 but it was dismissed holding that two centres are working as separate units. It is said that issue is also engaging attention of this Court in Writ Petition No. 22973 of 2012 which is pending. It is in these circumstances, the CMO, Ballia passed order of posting clerks separately at two centres. The then DGMH, Sri Ramji Lal thereupon passed order dated 05.07.2012 that the two centres are separate in view of Government Orders dated 31.03.1995 and 20.05.1999, hence functioning thereof should be ensured accordingly. It is said that petitioner has been posted at CHC Agur but he has not joined thereat resulting in obstruction of execution of programmes like, Janani Suraksha Yojna, Polio and emigration etc.

11. A separate counter affidavit has been filed by respondent no. 6 who has also taken stand similar as that of official respondents. It is said that on 31.10.1986, State Government upgraded 18 PHCs which included PHC Bansdih and termed upgraded PHC as 'CHC'. Due to lack of proper space and facilities, the new building (upgraded PHC) of CHC Bansdih was established four kilometers away from existing PHC. It is said that both are separate units working separately as PHC and CHC. He also placed reliance on Government Order dated 02.11.1995 containing guidelines, if a PHC is already situated and CHC is also established in the same campus, both shall be treated separate unit. He also referred to certain litigation between some medical officers posted at Bansdih, i.e., the order passed by this Court in Writ Petition No. 48734 of 2011. It is said that the issue has now been made final by DGMH vide order dated 05.07.2012 and nothing further need be looked into contrary thereto since the order of AD, Azamgarh, in the light of DGMH's order, has become unenforceable.

12. The basic issue, therefore, in this writ petition is, whether there are two separate establishments, i.e., PHC and CHC at Bansdih (Ballia) or it is one and the same establishment running at two places due to paucity of space.

13. The respondents were required to clarify this aspect of the matter. A copy of Government Order dated 31.10.1986 has been filed as Annexure-CA-2 to the compliance affidavit dated 07.09.2012 sworn by Dr. Pradeep Kumar Singh, CMO Ballia. The Government order says that for upgradation of 18 PHCs in 14 districts, financial sanction was granted for construction of requisite building. These PHCs are termed in the aforesaid Government order as upgraded PHCs/CHCs. It is said that newly constructed building shall have 13 beds and requisite staff sanctioned therefor is already mentioned above. Para 6 thereof also says that the expenses incurred, as a result of upgradation vide Government Order dated 31.10.1986, would be debited from the grant of the concerned PHCs. Para 6 of Government order reads as under:

^^6- bl laca/k esa gksus okyk O;; pkyw foRrh; o"kZ 1986&87 ds vuqnku la[;k ds vUrxZr vk; O;; 200 fpfdRlk vkftZukxr ¼d½ ,yksiSfFkd&11&fpfdRlk lk ¼76½ izkFkfed LokLF; dsUnksa dk mUu;u ¼ftyk ;kstuk½ ds vUrxZr lqlaxr izk0Lok0 ds ukesa Mkyk tk;sxkA**

"6. The expenditure to be incurred in this respect shall be debited against relevant 'Pra. Swa. i.e. Primary Health Centre Under Aay-Vyay 200 Chikitsa Arjanagat (ka) Allopathic-11-Chikitsa Sa (76) Prathmik Swastha Kendro Ka Ynnayan (District Plan)' under grant of current financial year 1986-1987."

(English translation by the Court)

14. Para 2 of enclosure to the Government Order dated 31.10.1986 says that upgraded PHC project now shall be termed as CHC. The schedule of Government order mentioned at Serial No. 7, District Ballia, and places, Bansdih and Sonversha. There is no document to show that in addition to existing PHC Bansdih, any Government order was ever issued to establish a separate CHC.

15. When an existing establishment is upgraded it would result in changing its own character accordingly and original unit would disappear creating a new unit, i.e., the upgraded unit. Whether for the reasons of shortage of space or otherwise, the building for upgraded health center, if constructed at a place four kilometers away from Bansdih or else, the fact remains that there was only one unit, i.e., PHC Bansdih and by Government Order dated 31.10.1986, it was upgraded as CHC with the sanction of funds for construction of requisite building. The Government order clearly mentions that now the existing "upgraded PHC" shall be called as 'CHC'. There is no manner of doubt that this Government order has resulted in extinction of erstwhile PHC and creation of CHC thereat. It is not the case of any of the respondents that any new or separate unit of CHC was created at any point of time, over and above and in addition to existing PHC. Subsequently, at what time and stage who committed mischief, what was the objective and motive for that and in what manner an impression was created as if there were two units, need not be investigated by this Court, for the reason that admittedly, till this date Government has not issued any order creating a CHC at Bansdih over and above the existing PHC thereat. In fact, the existing PHC was upgraded by Government order dated 31.10.1986 and converted into a CHC. The working place of CHC came into existence by virtue of Government order dated 31.10.1986, may be at two places but it was only one and the single unit. It is not a case where a separate CHC was established at Bansdih without touching the established PHC. The concerned CMO, as also other authorities in the Government, at different point of time, have clearly acted illegally, without looking into the facts as they stood, and the reasons for such mischief is better known to them who have tried to create this confusion. There was none earlier and there ought not have been anyone, yet this mischief has resulted. The reason may be either to usurp the funds or something which was not there or else.

16. It cannot be doubted that various orders have been passed by various authorities, in an illegal manner, under a totally mistaken belief and impression that there are two separate establishments, i.e., one PHC and one CHC though Government order dated 31.10.1986 has resulted in extinction of erstwhile PHC and converting and establishing it as 'CHC'. The fact that a new building was actually constructed at certain distance of existing building of erstwhile PHC, would not result in creating a separate unit since creation and establishment of a particular unit is the prerogative of State Government and in absence of any such separation/creation, none can be assumed or presumed, either by respondents-authorities or by anyone else.

17. In the circumstances, the writ petition is allowed. The respondents are directed to consider the question of posting of petitioner and respondent no. 6 in the light of observations made above, i.e., there is only one unit, i.e., CHC Bansdih though may be situated in part at two places, and shall pass appropriate orders regarding posting and functioning of these persons accordingly. It is evident that in creating a lot of confusion the concerned CMOs posted from time to time at Ballia are apparently responsible and DGMH has contributed to it by issuing wrong orders in a mechanical manner, adding to the earlier mischief of CMOs. Therefore, this writ petition is allowed with costs, which I quantify to Rs. 50,000/- which shall be paid to petitioner by respondents no. 1 and 3 but respondent no. 1 is given further liberty to recover the amount of cost from concerned official(s) found responsible for such misrepresentation with regard to existence of health center, i.e., PHC/CHC at Bansdih, after making such inquiry as permissible in law.

Order Date :-06.11.2012

AK