Allahabad High Court
Amit Kumar Sharma And 4 Others vs State Of Up And 4 Others on 1 March, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:37201
Judgment Reserved on 21.2.2024
Delivered on 1.3.2024.
Court No. - 36
Case :- WRIT - A No. 2551 of 2024
Petitioner :- Amit Kumar Sharma And 4 Others
Respondent :- State Of Up And 4 Others
Counsel for Petitioner :- Siddharth Khare
Counsel for Respondent :- Archana Singh,C.S.C.
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Himanshu Singh, learned counsel for petitioners, Sri L.M. Singh, learned Standing Counsel for State-Respondents and Sri Shrestha Pratap Singh, Advocate holding brief of Mrs. Archana Singh, Advocate for Respondents-3, 4 and 5.
2. This case is arising out of transfer of petitioners, who are Assistant Teachers in the respondent primary school in pursuance of a transfer policy for academic year 2023-2024.
3. This is the second round of litigation. Petitioner has approached this Court earlier by way filing Writ Petition No.11350 of 2023 wherein following orders were passed:
Order Dated 11.12.2023.
" 1. Sri Ashok Khare, learned Senior Counsel appearing along with Himanshu Singh, learned counsel for the petitioners and Ms. Archana Singh, learned counsel appearing for the respondent nos. 3, 4 and 5 are present.
2. Sri Kunal Ravi Singh, learned Chief Standing Counsel appearing for the State-respondent submits that looking to the factual nature of the controversy involved in the present case, the grievance of the petitioners may be examined by a State Level Committee, which is said to be existing, with the Director of Basic Education as its Chairman.
3. It is submitted that a fortnight's time may be granted to take an appropriate decision in this regard, after giving due opportunity to the parties concerned, and to file an affidavit in this regard.
4. As prayed, list on 17.1.2024 as fresh."
Order dated 17.1.2024.
"1. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Himanshu Singh, learned counsel for petitioners and Mrs. Archana Singh, Advocate for respondents.
2. Learned counsel for respondents submits that in pursuance of order passed by this Court on 11.12.2023 a decision has been taken by State Level Committee and it will be communicated to petitioners within three days.
3. At this stage, learned Senior Advocate appearing for petitioners submits that this Court by aforesaid order has directed that petitioners may also be given due opportunity of hearing, however, according to his instructions, no such opportunity was granted.
4. In aforesaid circumstances, since a decision has already been taken and will be communicated to petitioners within three days from today, therefore, at this stage nothing remains to be adjudicated in this writ petition. However, petitioners are at liberty to take legal recourse, if they feel still aggrieved.
5. With aforesaid observation, this writ petition is disposed of ."
4. Learned Senior Counsel has referred impugned order and submitted that directions passed by this Court that petitioners were required to be heard was not followed and without any reason, report submitted by Chief Medical Officer was accepted. He also submitted that stand taken by respondents in earlier round of litigation is contrary to impugned order and has referred some part of counter affidavit filed in earlier round of litigation.
5. Per contra, learned Standing Counsel and learned counsel appearing on behalf of Respondents no.3, 4 and 5 submitted that dispute is arising out of a policy matter, therefore, decision taken by Chief Medical Officer in regard to medical problem of petitioners or their spouse wherein a categorical finding was returned that it does not fall within the parameters of transfer policy so far as to grant marks, therefore, this Court may not interfere with the same.
6. Heard learned counsel for parties and perused the records.
7. It is not under dispute that in normal circumstances, this Court does not interfere in policy matter or orders passed in pursuance of a policy.
8. It is also not under dispute that there is a bar of transfer in mid term of a academic session and that present academic session is about to conclude.
9. Petitioners have claimed that they and their spouse are suffering from such illness which could fall within the parameters of transfer policy i.e. being serious or non-curable diseases in terms of Government Order Dated 27.12.2016 and relevant part thereof is reproduced hereinafter:
"For the kind reference of the Hon'ble Court, the categories mentioned in the परिषिष्ट "च" of the Government order dated 27.12.2016 are quoted below; For the kind reference of the Hon'ble Court, the categories mentioned in the " परिषिष्ट 'च'" of the Government order dated 27.12.2016 are quoted below;
1. All type of Cancer.
2. All types of Hear Diseases.
3. All types of Kidney Disease with Dialysis and Kidney Transplantation.
4. Chronic-Liver Disease and Liver Transplantation.
5. Liver Protective Process and Necessary Salvage Surgery for Immediate Treatment.
6. Short Term Acute Serious Liver Disease.
7. Knee and Hip Replacement.
8. Prostate Gland Surgery.
9. Cornea Transplantation. "
10. It is also not under dispute that petitioners have not challenged any clause of transfer policy as well as there is no allegation of malafide against Chief Medical Officer. Case of petitioners was re-examined in the light of report submitted by Chief Medical Officer.
11. Chief Medical Officer has examined the medical reports submitted by petitioners and benefit of granting 20 marks was denied as it does not qualify within above referred parameters.
12. This Court while sitting in writ jurisdiction cannot sit in appeal to examine as to whether decision taken by Chief Medical Officer was correct or not, since he is the expert in his field.
13. The deceases mentioned in the present case are Coronary Artery Disease, Tubercular Meningitis with Diabetes Mellitus, Coronary Artey Disease-Stable Angia;Cag-Dvd (Lad)+Lcx), Ptca With Stent To Lcx And Lad Done On 21/02/2023; Normal V Function, Rt Breast Mastetomy (d/Malignancy) and CLDC Anamemia.
14. It is also not under dispute that wife of petitioner no.4, Tej Patap Singh Yadav was suffering from cancer which has been operated, therefore, at this stage it does not fall under the category of non-curable disease and decision has been taken by Chief Medical Officer, Khiri after examining the medical report which has been mentioned in the impugned order as well as in the communication of Chief Medical Officer, Khiri dated 25.9.2023 which also notes that wife of Tej Patap Singh Yadav has not even appeared before Medical Board.
15. In aforesaid circumstances, this Court is of considered opinion that there is no circumstances to interfere with the decision taken by the Medical Board.
16. Writ petition is accordingly dismissed.
Order Date :-1.3.2024
SB
