Vinod Kumar Jaiswal vs State Of U.P.& 2 Ors.
2013 Latest Caselaw 6727 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- WRIT - A No. - 45863 of 2013
 

 
Petitioner :- Vinod Kumar Jaiswal
 
Respondent :- State Of U.P.& 2 Ors.
 
Counsel for Petitioner :- S.K.Mishra
 
Counsel for Respondent :- C.S.C., J.N.Maurya
 
And
 
Case :- WRIT - A No. - 52877 of 2013
 
Petitioner :- Sandesh Kumar Yadav
 
Respondent :- State Of U.P.& 2 Ors.
 
Counsel for Petitioner :- Brahmanand Tripathi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. Both these matters involve common questions of law and facts and, therefore, have been heard together and are being decided by this common judgment.

2. Sri S.K.Mishra, Advocate has advanced his submission on behalf of petitioner in Writ Petition No.45863 of 2013 (hereinafter referred to as "first petition") while learned Standing Counsel has represented respondents no.1, 2 and 3 and Sri J.N.Maurya, Advocate has appeared on behalf of respondent no.4. In writ petition No.52877 of 2013 (hereinafter referred to as "second petition"), Sri Brahmanand Tripathi has appeared on behalf of petitioner while learned Standing Counsel has advanced his submission on behalf of respondents.

3. First, I take up the facts, in brief, of first writ petition. The petitioner Vinod Kumar Jaiswal was working as Laboratory Assistant (Rural). Earlier he was posted at New Primary Health Centre Bilwaie (Kabaraie) District Mahoba. The petitioner's wife was also an employee working as Assistant Teacher in Pre-Madhyamik School Korwan, Rudrapur Development Block, District Deoria and came in family way sometime in March, 2013. Since she needed company of her husband during this period, hence representation was made by petitioner's wife to Director General, Medicine and Health Service, U.P. Lucknow, the competent authority, for transfer of petitioner Vinod Kumar Jaiswal at Deoria. The request was accepted and Director General passed an order of transfer on 29.5.2013 whereby petitioner of first petition along with sixteen others were transferred. The petitioner was transferred to District Deoria.

4. The Medical Superintendent, Mahoba, consequently, relieved petitioner (first petition) vide order dated 7.6.2013 whereafter he submitted joining at Deoria on 10.6.2013. Chief Medical Officer, Deoria (hereinafter referred to as "CMO, Deoria"), however, declined to accept petitioner's joining, vide order dated 18.7.2913, on the ground that there is no vacancy of Laboratory Assistant (Rural) under him and therefore, petitioner should report to Director General, Medical and Health Services, U.P. Lucknow. Assailing this order dated 18.7.2013 passed by CMO, Deoria, petitioner Vinod Kumar Jaiswal came to this Court. While hearing first petition, at admission stage, on 3.9.2013, this Court passed following order:

"1. The petitioner was transferred by Director General Medical and Health Service, U.P., Lucknow vide order dated 29.05.2013 by posting him under Chief Medical Officer, Deoria from his erstwhile office of Chief Medical Officer, Mahoba. By means of impugned order dated 18.07.2013 the Chief Medical Officer, Deoria has informed petitioner that there is no vacancy on which he can be allowed to take over charge and, therefore, he should report back or to approach the Director General himself for proper posting.

2. It is really strange that either the Director General himself is not aware as to how many posts are available under different Chief Medical Officer's office and how many vacant and he is passing mindless transfer orders or the Chief Medical Officers are playing some mischief. Let the Director, Medical and Health Service, U.P., Lucknow shall file his personal affidavit giving details as to how many posts are existing, how many kept vacant and in what manner he could pass an order transferring petitioner to a place where, as stated by respondent no. 3, there is no vacancy at all. This affidavit shall be filed by respondent no. 2 within ten days. Besides, the respondent no. 2 shall also provide relevant record of transfer of petitioner subject matter of present writ petition and other through an officer not below the rank of Additional Director, Medical and Health Services, U.P., Lucknow.

3. List this matter on 17.09.2013.

4. Until further orders of this Court the respondents no. 2 and 3 are directed to ensure payment of salary to petitioner from the office of Chief Medical Officer, Deoria.

5. A copy of this order shall be made available to learned Standing Counsel by tomorrow for information to respondents and compliance."

5. Pursuant to the aforesaid order, Dr. (Smt.) Renu Jalote, Additional Director (Health) filed her affidavit stating that she had been given charge of Director (Health) on officiating basis only on 31.5.2013, after retirement of the then Director, (Medical & Health) Dr. R.K.Singh. She admitted that in the year 2013-14, there were only 41 sanctioned post of Laboratory Assistant (Rural) in District Deoria and none was vacant at the time when annual transfer was ordered. As per the transfer policy, 7 Laboratory Assistants in Deoria were found to have worked for 20 years and more. They were identified for transfer outside District Deoria. Their consequent transfer orders were passed by the then Director (Medical) Dr. R.K.Singh, by a general order of transfer dated 29.5.2013 whereby transfer of other districts were also made.

6. Another transfer order was passed on the same date i.e. 29.5.2013, Annexure C.A.-2, whereby 6 Laboratory Assistants from other Districts were transferred to Deoria. A third transfer order was also issued on the said date i.e. 29.5.2013 and therein 2 Laboratory Assistants were transferred to District Deoria, which included the petitioner also. A fourth order was issued by the then Director Dr.R.K.Singh on 31.5.2013 transferring one Rameshwar Prasad, Laboratory Assistant from Azamgarh to Deoria and that is how, against 7 vacancies created due to transfers of seven Laboratory Assistants from Deoria, 9 from other districts were posted resulting in two surplus postings in Deoria.

7. Two persons namely Ashok Kumar Pandey and Lorik Yadav, Laboratory Assistants working at Deoria, who were transferred on 29.5.2013, outside District Deoria, represented against their transfer. Ashok Kumar Pandey claimed that he is an office bearer of employees' Union and therefore should not be transferred while Lorik Yadav represented that he has not completed 20 years and therefore, his transfer is on wrong premise. Both these representations were allowed and their transfers were cancelled by deponent of counter affidavit, namely, Dr. (Smt.) Renu Jalote, holding charge of Director (Health) by orders dated 6.6.2013 and 14.06.2013.

8. In this view of the matter, out of 9 persons, transferred to District Deoria from other districts, 4 became surplus namely Sri Chandrama Yadav, Sri Sandesh Kumar Yadav, Sri Vinod Kumar Jaiswal, the petitioner of first petition and Sri Rameshwar Singh based on the date of joining, inasmuch as, those who submitted joining report earlier were adjusted against vacancies and those who came later, after vacancies were over, treated surplus.

9. However, it is further said in paras 19 and 20 of the counter affidavit that there had occurred a vacancy of Laboratory Assistant at Deoria on 11.09.2013 due to resignation of one person, which was accepted on 11.9.2013 and in that vacancy, petitioner in first petition has been accommodated. His order of transfer, cancelled by order dated 8.8.2013, on account of petitioner having became surplus in District Deoria, was revoked and he has been allowed to continue at Deoria.

10. On a query made from deponent of counter affidavit as to why 9 Laboratory Assistants were transferred to District Deoria from other districts when only 7 persons were transferred from Deoria to other resulting in only 7 vacancies thereat, she said that for this discrepancy, she is not responsible since such orders were passed by erstwhile Director Dr. R.K.Singh, who has now retired.

11. It is in these circumstances, on the request made by counsel for the petitioner, this Court permitted him to implead Dr. R.K.Singh as respondent no.4 in first petition vide order dated 17.9.2013 and thereafter notice was issued to the newly impleaded respondent no.4 also.

12. Dr. Rakesh Kumar Singh, respondent no.4 in first petition consequently appeared and filed affidavit sworn on 27.10.2013. His defence is that after promotion of Dr.V.P.Gupta, the then Director (Health) on the post of Director General (Family Planning) U.P., respondent no.4 became Director (Health), took over charge on 28.02.2013 and worked till 31.5.2013, when he retired on attaining the age of superannuation. As per transfer policy, circulated by State Government, vide order dated 18.04.2013, all the transfers were to be completed by 15.5.2013, which date was subsequently extended upto 31.5.2013 by Government Order dated 21.05.2013. Pursuant to Government Order dated 18.04.2013, respondent no.4 issued letter dated 30.4.2013, asking all the Chief Medical Officers in the State of U.P., to furnish requisite information regarding period of posting of Laboratory Assistants (Rural), in their respective districts. Reminders were also issued on 14.05.2013, 18.05.2013 and 21.05.2013. On the basis of information received till 21.5.2013, four separate lists of Laboratory Assistants were prepared by office, and signed by Dr. Suresh Chandra, Joint Director (Health) and placed before respondent no.4 for approval. The said list was approved by him (respondent no.4) on 24.5.2013 and then by Director General (Medical & Health) on 29.05.2013. These lists included transfers of 280 and odd Laboratory Assistants in all. The details of these transfers have been mentioned in para 13 of the affidavit of respondent no.4. It says that 178 Laboratory Assistants were transferred under Transfer Policy 2013-14. The rest of the transfers in three lists were founded on various recommendations. 59 Laboratory Assistants were transferred on the recommendations of Health Minister and State Health Minister, 17 Laboratory Assistants were transferred on request of Ministers of other department and 31 Laboratory Assistants were transferred on the request of Member of Legislative Assemblies and Legislative Councils or on personal request of Laboratory Assistants. Since all these list were approved by Director General himself on 29.5.2013, therefore, the same were given effect to immediately. These list were duly checked by subordinate officials as also Joint Director (Health) and respondent no.4 could not find any apparent mistake in the said list. Moreso, since transfers were to be given effect to, latest by 31.5.2013, and, therefore, due to short span of time, it was not possible for respondent no.4 to verify each and every transfer, sought to be made and that is how, situation of excess number of transfers, even without vacancy, has occurred. For this error and omission, which has occurred, respondent no.4 has expressed regret in para 15 of the counter affidavit.

13. At the outset, I may notice hereat that entire para 15, including the regret shown by respondent no.4 has been sworn on the basis of legal advice. Meaning thereby, respondent no.4 himself does not feel any regret but this regret is founded on legal advice. Evidently, it is neither bona fide nor genuine and hence it has to be simply ignored. Moreso, it also shows the way and manner in which respondent officials, despite having issued erroneous, illegal orders, as also the orders founded on extraneous consideration like illegal recommendation etc., find no remorse and regret in themselves but treating it a technical aspect, on legal advice, try to express their regret but in fact neither they regret nor find any reason for regret.

14. This case also demonstrates specifically that transfers are being done not only in administrative exigency but also for political reasons. The recommendation by outsiders like political persons, in the form of transfer has made it a handy instrument to control bureaucracy and public officials, with an eye to gain political mileages etc.. Controlling executive, who have found favour with their involvement in the manner they like, those strangers to Executive wing, practically run executive without any answerability. Time and again, Courts including this Court have seriously deprecated and condemned this kind of attitude and practice in the State. Very rarely we find direct evidence where transfers are made on sheer political recommendation. The Court finds thus an occasion where admittedly transfers have been made on mere political recommendation and this Court cannot be a mute spectator to chew it without any effective interference.

15. In the present case, the authority competent to transfer, who has issued orders of transfer under his own signature himself has come out with his own affidavit that almost 100 transfers out of 280 and odd were made on the recommendations of Ministers including Minister of other department as also MLAs and MLCs. There cannot be anything disturbing, more than this. This case is a glaring example in the manner in which State is functioning. The competent authority has not applied its own mind independently particularly when it was at the verge of retirement. To cover up the entire misdeed, successor in office has adjusted the petitioner at the place of his choice i.e. Deoria itself, so as to prompt dismissal of this writ petition as infructuous at petitioner's own instance and to avoid occasion for this Court to examine, how large scale transfers of Class III employees like Laboratory Assistants have been given effect to on political considerations and without independent application of mind by competent transferring authority.

16. Learned counsel for the petitioner, however, instead of saying that the petition has rendered infructuous continued to pursue it urging that order of transfer now has been given effect to not from the date petitioner's initial joining i.e. 10.6.2013 but after passing a fresh order, i.e. after 12.09.2013, cancelling order dated 8.8.2013 and the petitioner was required to submit a fresh joining report and thereafter he was allowed to stay at District Deoria from 13.9.2013. The payment of salary, however, has been protected w.e.f. first date of joining i.e. 10.06.2013.

17. Apparently, even this methodology adopted by respondents is not consistent with rules. The factum that petitioner was required to submit fresh joining, which he did on 13.9.2013 is evident from para 20 of counter affidavit sworn by respondent no.2 i.e. Dr.(Smt.) Renu Jalote, Officiating Director. About the persons, who submitted joining earlier to petitioner, and were rendered surplus due to faulty and mindless transfers made by respondents no.2 and 4, nothing has been said and no explanation has come as to why petitioner has been favoured and not those who submitted joining earlier to petitioner.

18. Now, at this stage I propose to discuss facts of second petition also.

19. Sri Sandesh Kumar Yadav was working as Laboratory Assistant (Rural) at Primary Health Centre, Tajpur, District Moradabad and he also requested for transfer to Deoria on the ground of ill health of his father, who was residing alone since mother of petitioner (second petition) died long back. His request was accepted and he was transferred from Moradabad to Deoria vide order dated 29.5.2013 but when he submitted joining on 7.6.2013, Chief Medical Officer, Deoria vide order dated 18.7.2013 declined to honour joining and directed him to report to Director General, Medical & Health for the reason that there was no vacancy. In this case also, this Court passed an interim order on 25.09.2013.

20. Separate counter affidavits have been filed by respondents no.2 and 3 but both have been sworn by same person i.e. Dr.A.K.Chaudhary, Deputy Chief Medical Officer, (Administration) Deoria. The common facts stated therein are that one Raj Kishore, Laboratory Assistant (Rural) working at Deoria resigned and in his place, Sri Vinod Kumar Jaiswal, petitioner in first petition, has been accommodated at Deoria. The two other surplus Laboratory Assistants (Rural) transferred to Deoria namely Chandrama Yadav and Rameshwar Singh have been posted now at Fatehpur and Mirzapur respectively. So far as petitioner (second petition) is concerned, he has been allowed to join at Deoria at Naya Prathmik Swasthya Kendra, Babhani, District Deoria pursuant to Director (Health)'s order dated 7.10.2013 and his salary has been ensured to be paid therefrom w.e.f. 7.06.2013. The order dated 8.8.2013, whereby petitioner Sandesh Kumar Yadav's order of transfer at Deoria was cancelled, now has been revoked. Since there was no vacancy of Laboratory Assistant available for Sandesh Kumar Yadav, (petitioner, second petition), the Chief Medical Officer, Deoria in his order dated 10.10.2013 which has now been passed to tackle a situation created due to pendency of this case, made it clear that salary of petitioner, Sandesh Kumar Yadav, shall be drawn against sanctioned post of X-ray Technician. It is said that since petitioner has now been accommodated at Deoria, and there is no dispute, therefore the second petition has rendered infructuous.

21. Counsel for the petitioner, however, submitted that petitioner of (second petition) having submitted joining earlier to petitioner (first petition), in the vacancy caused due to resignation of one Laboratory Assistant, it is the petitioner (second petition), which deserve to be adjusted and not the petitioner (first petition). Since erstwhile Director was personally impleaded in first petition, therefore, to save skin and pacify petitioner (first petition) so as not to agitate the matter any further, petitioner (second petition) has been discriminated and the way in which respondents are acting is illegal, arbitrary and erroneous.

22. What I have discussed above, leaves no manner of doubt that unmindful, arbitrary, partisan and favoured orders, founded on political considerations and recommendations are being passed in volumes. The authorities are either deliberately ignoring or intentionally avoiding serious concentration on the ground level realities. It is one of the reasons, which has created a situation where without any post or vacancy, Laboratory Assistant (Rural) have been posted in a reckless manner and now one is sought to be adjusted at Deoria by ensuring his salary against another post, which has been kept vacant for the reasons not known. If vacancy of X-ray Technician was not required, it ought to have been surrendered by respondents but I do not find any justification that on the one hand, for maintaining better health facilities to the people at large, various posts have been sanctioned but staff is not recruited and appointed and sanctioned posts, for the purpose of salary, and also to cover up patently illegal actions of respondents, that too tainted with political advances and recommendation, are being used for different purpose i.e. payment of salary of another cadre. It is only to get oneself saved from strictures from a Court of law.

23. Besides the fact that barring initial 178 transfers, which were made by Director by order dated 29.5.2013, most other transfers are founded on political considerations. Apparently such transfers are illegal. Since both these persons have been allowed to join at Deoria and those orders are not under challenge, I find no justification to disturb petitioners but one thing is clear that these writ petitions have been forced upon petitioners, by respondents, and therefore for the litigious harassment etc., respondents have to be saddled with responsibility of paying exemplary cost to petitioners, besides an enquiry to be conducted by Chief Secretary as to how things are going on in Medical Department and elsewhere also where senior officials do not hesitate in simply passing patently illegal and politically motivated orders and, that too, in respect to transfers.

24. The Chief Secretary instead of adopting an easier method of disturbing transfers would get an inquiry conducted and then take appropriate action against official(s) responsible for such unmindful, unlawful and illegal orders. The treatment must go to the root irrespective of consequences. Once cause itself is corrected, its consequential action for all times to come will automatically stand cured/corrected. Moreso, at least it will reduce future repetition of such favouritism etc. in the matter of transfer.

25. In view of above discussion and facts and circumstances of the case, I direct Chief Secretary, U.P. Lucknow to find out as to how many transfers in last two years i.e. from 1.4.2011 to 31.3.2013 have been ordered by competent transferring authorities on mere political recommendations made by representatives of political parties, MLAs, MLCs and Ministers of department other than department concerned. The period, I have chosen, just to bring in public domain, a sample study of such unlawful activities so that its volume may compel the Government to take immediate corrective measures for preventing such actions. Chief Secretary shall also publicise result of enquiry including names of political person, who made recommendations, and, names of officer/official(s) concerned, for whom, transfer was recommended and actually given effect to by transferring authorities. All such details shall be published, by placing it on Internet and making all these information available to public at large, whosoever require it. The entire information shall also be published at least in two newspapers having its circulation throughout the State. He shall also take steps to prevent and check such transfers so that Executive wing, one of constitutional pillars, may not find its independence, encumbered by third party intervention and influence, which in common parlance is termed as "political consideration".

26. Both the writ petitions, therefore, are disposed of with the above direction, subject to payment of cost of Rs.50,000/- in each set of petitions against respondent no.2 and 4 in first petition and respondent no.2 only in second petition. In the first petition, amount of cost shall be shared equally by respondents no.2 and 4. It shall be paid to the petitioner within three months by the concerned respondents, failing which, on an application submitted by these petitioners to the Registrar General and a certificate being issued by him, the aforesaid amount shall be recovered as arrears of land revenue by concerned District Magistrate.

Order Date :- 30.10.2013

KA