Allahabad High Court
Anil Kumar Yadav vs State Of U.P. Thru Addl. Chief ... on 23 July, 2021
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 8
Case :- SERVICE SINGLE No. - 18031 of 2020
Petitioner :- Anil Kumar Yadav
Respondent :- State Of U.P. Thru Addl. Chief Secy. Medical & Health & Ors.
Counsel for Petitioner :- Sanjay Kumar Srivastava,Akshat Kumar
Counsel for Respondent :- C.S.C.
Hon'ble Irshad Ali,J.
1. Heard Shri Sanjay Kumar Srivastava, learned counsel for the petitioner and learned Additional Chief Standing Counsel for the respondents-State.
2. By means of the present writ petition, the petitioner is challenging the order dated 21.9.2020 whereby the representation of the petitioner has been rejected in compliance of the judgment passed by this Court in Writ Petition No.1521 (SS) of 2020 dated 7.7.2020.
3. Facts of the case are that the petitioner is working on the post of Pharmacist. On his own request, he was transferred from district Bareilly to district Lucknow vide order dated 28.06.2019 and in pursuance thereto, he submitted his joining on 5.7.2019. The Chief Medical Officer, Lucknow informed the Director General, Medical and Health Services, Lucknow that in district Lucknow, there is no vacancy available. Thereafter, the order was modified on 2.9.2019 whereby the petitioner was directed to join at Dr. Shyama Prasad Mukherji Civil Hospital, Lucknow where he joined and started discharging his duties on the post of Pharmacist. The modified order of transfer was cancelled on 25.10.2019 on the ground that in Dr. Shyama Prasad Mukherji Civil Hospital, Lucknow, there is no vacancy available of the post of Pharmacist and direction was issued to join at district Bareilly.
The order of cancellation was challenged in Writ Petition No.1521 (SS) of 2020 which was finally disposed of vide order dated 7.2.2020 by giving liberty to the petitioner to file a representation before respondent no.2, Director General, Medical and Health Services, Lucknow, who will consider and pass appropriate order. In pursuance thereof, the impugned order dated 21.9.2020 has been passed rejecting the representation filed by the petitioner.
4. Submission of learned counsel for the petitioner is that certain Pharmacists were also transferred on their own requests and they have been permitted to discharge their duties in district Lucknow, therefore non-permission to the petitioner is arbitrary and violative of Article 14 of the Constitution of India. He next submits that the petitioner is under ongoing treatment at S.G.P.G.I., Lucknow and on this ground, he was transferred at Lucknow, therefore non-consideration of this aspect of the matter is illegal and is not justified in the eyes of law. In support of illness of the petitioner, the petitioner has annexed copies of the medical prescriptions of the treatment at S.G.P.G.I., Lucknow.
5. Last submission of learned counsel for the petitioner is that the petitioner is ready to join at district Bareilly and after the joining, liberty should be given to the petitioner to file representation to consider the ill-health of the petitioner and ongoing treatment at S.G.P.G.I., Lucknow by passing an order to appoint the petitioner at nearby place of S.G.P.G.I., Lucknow.
6. On the other hand, learned Additional Chief Standing Counsel submits that the transfer of an employee is exigency of service and it can be interfered on two grounds viz. (i) if there is violation of statutory Act or Rules; and (ii) there is malice on the part of the respondents. He next submits that both the ingredients in the present writ petition are missing, therefore this writ petition is not liable to be entertained in exercise of power conferred under Article 226 of the Constitution of India. He next submits that in case the petitioner is suffering from some diseases and is under treatment at S.G.P.G.I., Lucknow, his claim shall be considered and appropriate order shall be passed.
7. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.
8. On perusal of the impugned order, it is evident that the claim to permit working of the petitioner at Lucknow has been rejected only on the ground that there is no vacancy available on the post of Pharmacist. It is also reflected that taking into consideration the personal request of the petitioner to post at Lucknow, his claim was accepted and his transfer was made at Lucknow and the respondents tried to accommodate the petitioner at Lucknow, but due to non-availability of vacancy, the order of transfer was cancelled and he was re-delegated at Bareilly. On perusal of the material on record, there does not appear violation of any Rules governing the service conditions of the petitioner nor there is ground of malice intention on the part of the respondents.
9. In view of the above, this Court is of the opinion that it is not a fit case for interference in the impugned order, but by considering the material on record, this Court is also of the opinion that one opportunity is to be given to the petitioner that in case he joins at the place, where he has been directed to join within one week from the date of production of a certified copy of this order, liberty is given to him to file a comprehensive representation within two weeks thereafter by enclosing prescriptions of the doctor and others relevant documents to establish that he is ongoing treatment at S.G.P.G.I., Lucknow before respondent no.2 (Director General, Medical and Health Services, U.P., Lucknow), who will consider and pass an appropriate order sympathetically within a period of six weeks from the date of production of a certified copy of this order.
10. In the result, the writ petition is disposed of.
Order Date :- 23.7.2021
GK Sinha
