Dr.Mirza Qaiser Baig vs State Of ...
2019 Latest Caselaw 4473 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 26.04.2019
 
Delivered on  14.05.2019
 

 
Case :- SERVICE SINGLE No. - 26029 of 2018
 
Petitioner :- Dr. Mirza Qaiser Baig
 
Respondent :- State Of U.P.Thru.Prin.Secy.Deptt.Of Medical Education &Ors.
 
Counsel for Petitioner :- Anupam Mehrotra
 
Counsel for Respondent :- C.S.C.,Sanjay Bhasin
 

 
*****
 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Sri Anupam Mehrotra, learned counsel for the petitioner and Sri Sanjay Bhasin,learned counsel for all the opposite parties.

2. By means of this writ petition, the petitioner has impeached the order dated 06.08.2018, passed by the Principal Secretary, Medical Education, Government of U.P., Lucknow, whereby the departmental enquiry against the petitioner under Rule 7 of Uttar Pradesh Government Servant (Disciplinary & Appeal) Rules, 1999 (here-in-after referred to as the "Rules, 1999") has been initiated for the allegation that the petitioner being Associate Professor in the Department of Radiotherapy in B.R.D. Medical College, Gorakhpur has exploited some employees, abused his subordinates and proceeded for foreign trip without taking prior permission from the State Government.

3. The petitioner has also assailed the order of the same date i.e. dated 06.08.2018, whereby the petitioner has been transferred from B.R.D. Medical College, Gorakhpur to the Government Medical College, Jhansi.

4. The facts and circumstances of the case giving rise to this writ petition is that the petitioner was initially Doctor in the Indian Army (through Short Service Commission) with effect from 1997 to 2003.

5. The petitioner completed his post graduation, M.D. (Radiotherapy) from King George Medical University, Lucknow (here-in-after referred to as the "K.G.M.U.") in the year 2006. In the year 2008, the petitioner was selected through U.P. Public Service Commission for appointment on the post of Lecturer in U.P. State Medical College, Teachers Service and was appointed on the post of Lecturer Radiotherapy, B.R.D. Medical College, Gorakhpur and joined on 22.05.2008.

6. On 25.02.2016, by way of additional charge the petitioner was appointed as Chief Medical Superintendent of Nehru Hospital, B.R.D. Medical College, Gorakhpur. Further, on 29.06.2017 by way of additional charge the petitioner was appointed as Security Incharge (Chief Security Officer) B.R.D. Medical College, Gorakhpur.

7. As per learned counsel for the petitioner, one unanimous complaint was made against the petitioner by one Jai Devi, Member of Legislative Assembly (M.L.A.), Malihabad, Lucknow on 03.06.2018 levelling allegations against the petitioner that he is exploiting one Dr. Rakesh Kumr Rawat, Associate Professor, Radiotherapy Department. Further, he is exploiting some other employees subordinate to him and abusing them like anything and has utilized foreign trip without seeking prior permission from the State Government. The said complaint is annexed as Annexure No.SA-1 to the supplementary affidavit dated 19.09.2018 filed by the learned counsel for the petitioner.

8. The submission of learned counsel for the petitioner is that the departmental enquiry was initiated against the petitioner on the aforesaid complaint dated 03.06.2018 of M.L.A. inasmuch as the order of initiating the disciplinary proceedings against the petitioner is dated 06.08.2018 and the petitioner was transferred on the same date i.e. 06.08.2018.

9. Further submission of learned counsel for the petitioner is that the first impugned order dated 06.08.2018 has been passed against the petitioner without getting prior approval from the Hon'ble Governor, who is appointing authority of the petitioner, therefore, the said order is void ab initio. However, the second impugned order dated 06.08.2018 whereby the petitioner has been transferred, has been passed after prior approval from the Hon'ble Governor.

10. The learned counsel for the petitioner has submitted that being a law abiding person, the petitioner complied with the transfer order dated 06.08.2018 immediately and on 07.08.2018 he handed over the charge of Radiotherapy Department to Dr. Rakesh Kumar Rawat and preferred an application to the Principal of B.R.D. Medical College, Gorakhpur seeking no dues certificate so that he could join at Jhansi.

11. The petitioner submitted his joining at Medical College, Jhansi on 08.08.2018 but since no post of Associate Professor was vacant at Jhansi Medical College, therefore, the Principal of Jhansi Medical College preferred a letter dated 08.08.2018 to the Director General, Medical Education and Training apprising that no post of Associate Professor is lying vacant at Medical College, Jhansi. By means of aforesaid letter, the Principal, Medical College, Jhansi has sought permission to appoint the appoint the petitioner on the vacant post of Professor as said post is lying vacant.

12. On the aforesaid letter dated 08.08.2018, the Director General, Medical Education and Training vide letter dated 13.08.2018 clarified the position saying that the petitioner be permitted to submit his joining on the vacant post of Professor and he shall be paid his salary for the post of the petitioner, referring Rule 15 of Uttar Pradesh State Medical Colleges Teachers Service (Second Amendment) Rules, 2005 (here-in-after referred to as the "Rules, 2005") and Rule 15 of Rules, 2005 provides the procedure for recruitment by personal promotion. In view of the aforesaid Rule, the person concerned shall carry his post with his transfer place and shall be paid salary of that post. Since the petitioner is Associate Professor, therefore, he shall be paid the salary of Associate Professor even if he is permitted to submit his joining on the post of Professor. Just after receiving the aforesaid letter dated 13.08.2018, the Principal, Jhansi Medical College wrote a letter dated 14.08.2018 to the petitioner asking him to submit his joining at Medical College, Jhansi with immediate effect. But the petitioner has not submitted his joining, rather he preferred representation to the Principal that since the post of Associate Professor is not lying vacant in the Medical College, Jhansi and he was being permitted to submit his joining on the post of Professor, therefore, he would only submit his joining on the post of Professor if he is paid salary of that post.

13. Basically, this entire controversy is not much complicated inasmuch as the petitioner is submitting that he could have submitted his joining at Medical College, Jhansi on the post of Professor when he would be assured that he shall be paid salary for the post of Professor at Jhansi whereas the stand of the opposite parties is that when the petitioner is being permitted to submit his joining at Medical College, Jhansi on the post of Professor and he shall be paid his salary for the post which he is carrying i.e. the post of Associate Professor, then the petitioner should have submitted his joining on the post of Professor as he has himself submitted his joining at Jhansi after being relieved from the Gorakhpur.

14. Sri Sanjay Bhasin, learned counsel for the opposite parties has submitted with vehemence that the petitioner is deliberately and intentionally flouting the transfer order despite the fact that the position has already been clarified and it has been decided by the opposite parties that the petitioner shall be permitted to submit his joining on the post of Professor at Medical College, Jhansi where he shall be getting his salary admissible for the Associate Professor as the petitioner is carrying the post of Associate Professor with him and so as to remove the aforesaid difficulty, there is specific provision under Rule 15 of Rules, 2005.  Sri Bhasin has submitted that his statement may be recorded to the effect that if the petitioner submits his joining at Medical College, Jhansi against the vacant post of Professor, Radiotherapy, he shall be permitted to submit his joining and he shall be paid his salary for the post of Associate Professor, Radiotherapy, the post which the petitioner is carrying.

15. It is noted that since Sri Bhasin is counsel for all the opposite parties, be it the Principal Secretary, Department of Medical Education or the Director General of Medical Education & Training, U.P., therefore, the petitioner should have submitted his joining at Medical College, Jhansi as it appears that there is no legal impediment of any kind whatsoever.

16. Besides, Sri Bhasin has submitted that as per the power vested through Article 309 of the Constitution of India, there was an amendment brought in "U.P. State Medical Colleges Teachers Service Rules, 1990"  and were published as "U.P. State Medical Colleges Teachers Service (Second Amendment) Rules, 2005" in the final gazette, U.P.  The perusal of the aforesaid Rules, 2005 brings into the light the fact that after 12.05.2005, the date of amendment, the rules for the cadre of service (Rule 4), source of recruitment (Rule 5) and the procedure for recruitment by person promotion (Rule 15) were also amended.  Further, as per above amendment brought in by Rules, 2005, it is amply clear that after 12.05.2005, there is no bifurcation/ classification in number of seats to be distributed for the Lecturers or Assistant Professor or Associate Professor or Professor in a specific department but instead there is general classification viz Category 'A' and category 'B' as type of faculty to be present and total number of teaching faculty/ staff to be present in the department in the Government Medical Colleges.  Therefore, Sri Bhasin has submitted that the impugned order of transfer has been passed in accordance with law by the Competent Authority taking into consideration all facts and circumstances of the issue and do not suffer from any legal infirmity.  The action, which has been taken against the petitioner, has been taken by the State Government i.e. the Appointing Authority not just for initiating the disciplinary action but also for transferring the petitioner also since such action lie with the executive and administrative powers of the State.

17. Sri Bhasin has also drawn attention of this Court towards Annexure No.CA-1 of the counter affidavit of the Director General of Medical Education & Training, U.P., which is a copy of letter dated 28.05.2018 containing the dossier supplied along with the papers so as to demonstrate that the departmental proceedings against the petitioner and issuance of the transfer order of the petitioner by means of impugned order dated 06.08.2018 is not an outcome of the complaint being made by the local M.L.A.. It is on account of some alleged misconduct being committed by the petitioner and those acts of the petitioner were requiring thorough departmental enquiry so as to ascertain the truth-ness of the allegations.  In the aforesaid dossier, there is one letter dated 10.05.2018 preferred by the Principal of the Medical College, Gorakhpur addressing to the Head of the Department of Radiotherapy, Medical College, Gorakhpur, the post which was holding by the petitioner at that point of time wherein certain allegations have been levelled against the petitioner.  The perusal of the aforesaid letter dated 10.05.2018 reveals that the petitioner was not discharging his duties strictly in accordance with law.  Further, there is one more letter has been annexed with this dossier dated 28.05.2018 preferred by the Principal, B.R.D. Medical College, Gorakhpur addressing to the Director General, Medical Education & Training wherein some allegation was levelled against the petitioner, for which, the departmental enquiry against the petitioner has been initiated vide order dated 06.08.2018.  Therefore, it may not be said that pursuant to the complaint of local M.L.A. dated 03.06.2018 the departmental enquiry against the petitioner has been initiated.  As a matter of fact, what the records reveal that the alleged misconduct of the petitioner was noticed by the Competent Authority earlier to the complaint being preferred by the local M.L.A.

18. Be that as it may, since the enquiry against the petitioner has been initiated vide order dated 06.08.2018, and as per Sri Bhasin, the said enquiry was initiated after completing all necessary legal formalities to that effect and getting the prior approval from the Government, therefore, such enquiry should be conducted and concluded to its logical end.  As per Sri Bhasin, since this Court vide order dated 12.09.2018 was pleased to grant interim protection to the petitioner directing that no coercive measure shall be taken against him, therefore, the departmental enquiry against the petitioner could not be conducted and concluded.

19. Sri Anupam Mehrotra, learned counsel for the petitioner, has submitted that the impugned transfer order has been issued by way of punishment, therefore, it is not sustainable in the eyes of law.  Sri Mehrotra has also placed reliance upon the judgment of Hon'ble Apex Court in re: Bachhittar Singh vs. State of Punjab reported in AIR 1963 SC 395 by submitting that since the order for initiation of the departmental enquiry has not been issued in the name of Governor, therefore, in view of the aforesaid judgment of Hon'ble Apex Court the order dated 06.08.2018 shall be void ab initio.

20. Sri Mehrotra has further stated that the judgment of Hon'ble Apex Court in re: Sarvesh Kumar Awasthi vs. U.P. Jal Nigam and others reported  in (2003) 11 SCC 740 by submitting that if any transfer order has been issued at the behest of any politician, the same would be nullity in the eyes of law.

21. Sri Mehrotra has further cited the judgment of this Court in re: State of U.P. & another vs. Shesh Mani Tripathi reported in [(1991) 2 UPLBEC 1303] by submitting that if the transfer order has been passed on the ground of complaint, the same cannot be sustained.

22. Likewise, the Hon'ble Apex Court in re: Somesh Tiwari vs. Union of India reported in (2009) 2 SCC 592 has held that the transfer of an employee may not be made on the basis of unanimous complaint.

23. Both the transfer order and initiation of enquiry orders are dated 06.08.2018. The transfer order clearly indicates that it has been passed after prior approval of the Hon'ble Governor. The learned counsel for the opposite parties has submitted with vehemence that before passing both the orders dated 06.08.2018 the legal formalities were followed as necessary approval was sought from the Hon'ble Governor, only it has not been indicated in the order, however, he can demonstrate by producing the relevant record, therefore, there is no good reason to disbelieve that statement of Sri Sanjay Bhasin, learned counsel for the opposite parties.

24. In view of the aforesaid facts and statement given by the learned counsel for the opposite parties, none of the case laws so cited by Sri Mehrotra are applicable in the present case. Further, it appears that the impugned orders are not the outcome of the complaint being made by the local M.L.A.

25. Considering the rival submissions of learned counsel for the respective parties, perusing the material available on record and also perusing the case laws so cited by learned counsel for the petitioner, I am of the considered view that the transfer order has not been passed on the basis of any unanimous complaint but at the best it can be said that the transfer order has been passed to conduct the departmental enquiry against the petitioner independently without having any interference of the petitioner at Gorakhpur. Further, since the learned counsel for the opposite parties has submitted that the decision of initiation of departmental enquiry has been taken strictly in accordance with law after getting prior approval from the Competent Authority of the State Government and the enquiry against the petitioner could not be conducted and concluded for the reason that this Court has granted interim order dated 12.09.2018, therefore, as soon as this matter would be decided finally, the departmental enquiry against the petitioner would be conducted and concluded to its logical end strictly in accordance with law. I have also noticed that the petitioner himself was initially obeying the transfer order inasmuch as just after the issuance of transfer order dated 06.08.2018, he immediately handed over the charge on 07.08.2019 and sought no objection certified and as soon as he got the no objection certificate, he submitted his joining at Medical College, Jhansi but since the post of Associate Professor at Medical College, Jhansi was not vacant, therefore, he could not submit his joining on the post of Associate Professor, Radiotherapy at Medical College, Jhansi. However, the position has been clarified and on the instructions of opposite party Nos.1 and 2, more particularly, from the direction/ clarification of opposite party No.2. the Principal of Medical College, Jhansi has asked the petitioner to submit his joining at Medical College, Jhansi on the post of Professor, Radiotherapy, a vacant post, and the petitioner shall be paid his salary and other benefits admissible for the post of Associate Professor (Radiotherapy) at Medical College, Jhansi as the petitioner is carrying the post of Associate Professor, Radiotherapy with him.

26. Therefore, I find no infirmity, illegality or perversity in the orders passed on the same date i.e. dated 06.08.2018, passed by the opposite party No.1, which are contained as Annexure Nos.1 and 2 respectively to the writ petition, Therefore, the writ petition is liable to be dismissed.

27. Accordingly, the writ petition is dismissed.

28. The petitioner is directed to submit his joining at Medical College, Jhansi on the post of Professor, Radiotherapy, the vacant post, and he shall be paid his salary and other benefits admissible for the post of Associate Professor, Radiotherapy, the post which is being carried by the petitioner after getting personal promotion on the said post.

29. The Competent Authority shall take decision in respect of making payment of salary to the petitioner for the period the petitioner could not submit his joining at Medical College, Jhansi for the reasons discussed in the writ petition but such decision shall be taken by the opposite parties with promptness and strictly in accordance with law.

30. The Competent opposite parties may conduct and conclude the department enquiry against the petitioner if it so required, but the same should be conducted and concluded strictly in accordance with law as well as by following principles of natural justice with promptness and the petitioner may not be subjected to harassment for the reasons that he has filed the present petition.

31. No order as to cost.

Order Date :- 14.05.2019

Suresh/

[Rajesh Singh Chauhan,J.]