Calcutta High Court (Appellete Side)
Dr. Tarakeswar Prasad vs Union Of India & Ors on 14 January, 2021
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :- Hon'ble Justice Amrita Sinha
WPA No. 7857 of 2020
Dr. Tarakeswar Prasad
Vs.
Union of India & Ors.
For the writ petitioner :- Mr. Kishore Datta, Ld. AG.
Mr. Subhabrata Datta, Adv.
Mr. Aranya Saha, Adv.
For UOI :- Mr. Debapriya Gupta, Adv.
For the respondent no. 6 :- Ms. Sucharita Biswas, Adv.
Hearing concluded on :- 06-01-2021
Judgment on :- 14-01-2021
Amrita Sinha, J.:-
The instant writ petition is a sequel of the order passed by an
Hon'ble Division Bench of this Court on 25th August, 2020 in MAT 486
of 2020 with CAN 4324 of 2020 and CAN 4325 of 2020.
In an earlier writ petition filed by the petitioner being WP 5692 (W)
of 2020 challenging his order of transfer, the learned Single Judge by an
order dated 2nd July, 2020, as an interim measure, restrained the
respondents from giving any effect to the impugned order of transfer
dated 22nd June, 2020 for a period of eight weeks. In an appeal
preferred by the Union of India against the aforesaid order, the Hon'ble
Division Bench by the order dated 25th August, 2020 was pleased to set
aside the order of transfer with a further direction upon the Ministry to
reschedule the transfer roster accordingly.
In compliance of the order passed by the Hon'ble Division Bench,
the Ministry by an order dated 23rd September, 2020 posted the
petitioner at the Composite Hospital, BSF Kolkata.
The petitioner's grievance, primarily, is that though the
respondent authority has retained him at Kolkata but with a mala fide
intention did not reschedule the transfer roster. In view of not
rescheduling the transfer roster, the person who was originally
transferred to Kolkata i.e; Dr. Subrata Chakraborty, the private
respondent herein, has been retained at Kolkata and the petitioner has
been posted at Kolkata. The same implies that presently two persons are
serving as the Medical Superintendent of the Composite Hospital,
Kolkata.
The petitioner refers to the BSF manual, Medical Directorate
wherefrom it appears that in respect of a 50 bedded hospital there is
only one sanctioned post of Medical Superintendent. It has been
submitted that the respondent authorities are acting contrary to their
own guidelines and have engaged two medical superintendents in the
Composite Hospital which is a 50 bedded one.
The petitioner has filed a supplementary affidavit annexing the
office order dated 28th September, 2020 wherein the duties of the two
medical superintendents of the Composite Hospital, Kolkata have been
mentioned. According to the petitioner the duties have been allotted to
him in such a manner that the same completely nullifies the purport of
the order of the Hon'ble Division Bench.
It has been contended that the duties which were performed by
the petitioner previously have been assigned to the private respondent
and the nature of the duties allotted to the petitioner is such, that it
appears that the petitioner is a subordinate officer of the private
respondent.
It has been argued that though there has not been any change in
the scale of pay but from the nature of the duties assigned to the
petitioner it appears that he has been placed under the command of the
private respondent.
The petitioner prays for partial withdrawal of the impugned order
of transfer.
The petitioner relies upon a judgment delivered by the Hon'ble
Supreme Court in the matter of Vice-Chancellor, L.N.Mithila
University -vs- Dayanand Jha reported in (1986) 3 SCC 7 paragraphs
7 and 8 in support of his contention that equivalence of the pay scale is
not the only factor in judging whether the posts are equivalent or not.
The true criteria for equivalence are the status and the nature and
responsibilities of the duties attached to the two posts.
The learned advocate representing the private respondent
vehemently opposes the prayer of the petitioner. It has been vociferously
contended that the writ petition is not maintainable. The petitioner does
not have the locus standi to file the writ petition as he is not an
aggrieved person. It has been argued that as the order of the Hon'ble
Division Bench has been duly complied with by the respondent
authority the petitioner ought not to have any further grievance.
The private respondent relies upon the decision delivered by the
Hon'ble Supreme Court in the matter of Dr. Umakant Saran -vs- State
of Bihar & Ors. reported in AIR 1973 SC 964 paragraph 10 on the
issue that mandamus may be issued to compel the authorities to do
something only when the statute imposes a legal duty and the aggrieved
party has a legal right under the statute to enforce its performance.
Reliance has also been placed on the judgment delivered by the
Hon'ble Supreme Court in the matter of Mani Subrat Jain -vs- State of
Haryana & Ors. reported in AIR 1997 SC 276 paragraph 9 to highlight
the point that one cannot ask for a mandamus without a legal right.
There must be a judicially enforceable right as well as a legally protected
right, before one suffering a legal grievance can ask for a mandamus.
The private respondent further relies on the judgment of the
Hon'ble Supreme Court in the matter of D. Nagaraj -vs- State of
Karnataka & Ors. reported in AIR 1977 SC 876 paragraph 7 to drive
the point that a person who is not aggrieved by the discrimination
complained of, cannot maintain a writ petition.
The learned advocate appearing on behalf of the private
respondent has relied upon the laboratory investigation reports given by
the hospital, in favour of the wife of the petitioner on 7th August, 2020
and 10th August, 2020. It has been submitted that the petitioner has
deliberately misled the Court and obtained order from the Hon'ble
Division Bench on 25th August, 2020. It has been pointed out that on
the day the order was passed by the Court, the wife of the petitioner had
reported negative for Covid and accordingly Covid ought not to have
been a reason praying for recalling the order of transfer.
It has also been argued that as the tenure of the petitioner at
Kolkata was long over, he is liable to be transferred to some other place
and the Court ought not to interfere with the posting order of the private
respondent in Kolkata.
The learned advocate representing the Union of India submits that
the office order dated 28th September, 2020 clearly mentions that in
view of the Covid pandemic scenario and the load of patients in the
Composite Hospital, BSF Kolkata, owing to huge deployment of
paramilitary force in North-East region and to cater to the best and
speedy treatment of the needy jawans and their families and with an
aim of an earlier implementation of "PMJY Aushman Bharat Yojna",
senior doctor, Dr. Subrata Chakaraborty has been posted at the
Composite Hospital, BSF Kolkata.
It has been further submitted that the duty of the two medical
officers have been clearly mentioned in the said office order and no case
has been made out by the petitioner as regards conflict of duties. It has
been argued that in view of the pandemic, as per the provision of
Section 35 of the Disaster Management Act, 2005, the Central
Government is entitled to take all such measures that it thinks
expedient for the purpose of disaster management. It is open for the
respondent authorities to deploy requisite number of medical officers in
the hospitals as per exigencies. In the pandemic situation the guidelines
as indicated in the BSF manual will not stand in the way of
implementation of the provisions of the Disaster Management Act.
The respondent authority contends that the petitioner does not
have any legally enforceable right to file the instant writ petition.
Reference has been made to the averment made by the petitioner in
paragraph 15 page 10 of the writ petition, wherein the petitioner has
admitted that the Union of India has complied with the order dated 25th
August, 2020 and has given effect to the same by allowing the petitioner
to stay at his present place of posting, that is Composite Hospital, BSF
Kolkata until further orders.
The respondent authority denies the allegation of the petitioner
that he has been allotted duties in such a manner as if he was
subordinate to the private respondent. It has been contended that the
duties of both the officers have been distinctly mentioned in the office
order and there is hardly any reason on the part of the petitioner to be
aggrieved with the same.
The respondent authority relies on the decision delivered by the
Hon'ble Supreme Court in the matter of Mani Subrat Jain (supra) and
submits that the writ petition at the instance of the petitioner is not
maintainable. Both the respondents deny the applicability of the ratio
decidendi of the decision delivered by the Hon'ble Supreme Court in the
matter of Dayanand Jha (supra). Both pray for dismissal of the writ
petition.
I have heard the submissions made on behalf of both the parties.
Though the office order dated 28th September, 2020 mentions that
senior doctor, Dr. Subrata Chakraborty has been transferred from
Chandigarh to Kolkata to cater to the best and speedy treatment of the
needy jawans and their families and with the aim of an earlier
implementation of the "PMJY Aushman Bharat Yojna", but it appears
from records that both the parties are highly interested and keen to
remain posted at the Composite Hospital, Kolkata for varied reasons.
The petitioner has averred in the writ petition that his wife, aged
about 61 years, is suffering from chronic kidney and critical disease for
which she has to undergo haemodialysis thrice a week at Medica Super
Speciality Hospital, Kolkata. He joined the Composite Hospital, Kolkata
on 2nd January, 2017 and he is due to retire from service on 31st
December, 2021.
The petitioner by an order dated 2nd August, 2019 was transferred
from Kolkata to Chandigarh. Being aggrieved by the said order of
transfer he filed a writ petition before this Court being WP 15717 (W) of
2019. During the pendency of the writ petition the transfer order of the
petitioner stood modified and the respondent authority permitted the
petitioner to continue to remain posted at Kolkata till completion of his
normal tenure.
An order of transfer was thereafter issued on 22nd June, 2020
whereby the petitioner was transferred from Kolkata to Chennai and the
private respondent was transferred from Chandigarh to Kolkata. The
petitioner being aggrieved by the same filed the writ petition being WP
5692 (W) of 2020. The said writ petition stood disposed of by the order of
the Hon'ble Division Bench on 25th August, 2020 whereby the transfer
order of the petitioner was set aside and the Ministry was directed to
reschedule the transfer roster accordingly.
The Ministry in compliance of the order of the Hon'ble Appeal
Court permitted the petitioner to retain his post at the Composite
Hospital, BSF Kolkata but at the same time, also permitted the private
respondent to remain posted at Kolkata.
The BSF manual, Medical Directorate lays down the guidelines
pertaining to the organisational role and task. The manual has been
published with the aim to support a standard and uniform pattern all
over the force pertaining to the medical directorate. It gives the basic
information covering all aspects of the functioning of the directorate.
In the manual it has been mentioned that there is only one
sanctioned post of Medical Superintendent in a 50 bedded Composite
Hospital. Admittedly, the Composite Hospital at Kolkata is a 50 bedded
one. To wriggle out of their act in posting two superintendents in a 50
bedded hospital, the respondent authority has relied upon Section 35 of
the Disaster Management Act, 2005. An impression has been created
that in view of the huge load in the hospital at Kolkata, services of two
medical superintendents were required to cater to the best and speedy
treatment of the patients. Had medical exigency been the real reason for
retaining two medical superintendents in the Composite Hospital at
Kolkata, then the office order ought not to have mentioned, that Dr.
Subrata Chakraborty has been posted at the Composite Hospital,
Kolkata on 'compassionate ground'.
Even if the office order dated 28th September, 2020 is to be given
credence, then as per the said office order the respondent authority
ought to assign the duty of earlier implementation of "PMJY Ayushman
Bharat Yojna" to Dr. Chakraborty and not to the petitioner.
From the charter of duties it appears that the petitioner has been
made in-charge of the "PMJM Ayushman Bharat Yojna" run by the
Composite Hospital, whereas the very reason for transferring Dr.
Subrata Chakraborty from Chandigarh to Kolkata was for the speedy
implementation of the said project. The reason portrayed for bringing on
transfer and retaining Dr. Subrata Chakraborty at Kolkata is absolutely
contrary to the duties allotted to him.
Undoubtedly, the respondent authorities have complied with the
order of the Hon'ble Division Bench, but at the same time adopted a ploy
to bypass the same by rescheduling the transfer roster in such a
manner, that both the doctors have been retained at Kolkata and both
have been left fighting between themselves. Due to the infighting in
between the two doctors the ultimate sufferer will be the patients who
visit the hospital for treatment. Both the doctors are trying to steal a
march over the other. Both complain that the other has been retained at
Kolkata for long periods. If such a situation is permitted to continue,
then within no time, will there be a total impasse in the said hospital.
As the earlier transfer order of the petitioner was set aside by the
Court and direction was passed for rescheduling the transfer roster, the
Ministry ought to have acted in a prudent manner prior to passing the
subsequent order of transfer on 23rd September, 2020.
The petitioner has averred that the hospital at Kolkata is the
solitary instance, throughout the country, where two medical
superintendents have been posted against one sanctioned post in a 50
bedded hospital. The entire country is passing through the pandemic
and there may be genuine requirement of a medical superintendent in a
hospital. It is not the case of the Ministry that the number of beds in the
Kolkata hospital has increased. Then the only reason for the extra load
would be a rise in the number of outdoor patients. Assuming it is so,
even then, it has to be assessed as to whether an additional medical
superintendent was required for handling the extra load. Had that been
so, the office order would not have mentioned, that Dr. Subrata
Chakraborty has been posted at Kolkata on 'compassionate ground'.
As the respondent authority complied with the order of the
Hon'ble Division Bench it implies that they have accepted the said order.
The order has attained finality. In such a case, the order ought to have
been implemented in its proper perspective. When there is a specific
direction for rescheduling the transfer roster, the posting of the doctors
at Kolkata ought to have been rescheduled. Instead of rescheduling the
Kolkata roster the Ministry has retained two senior doctors at Kolkata
on the plea of implementation of the provision of Section 35 of the
Disaster Management Act.
The respondents have strongly pressed the issue of non-
maintainability of the writ petition on the ground that no cause of action
survives to file the same. Decisions of the Supreme Court have been
relied upon on the point that in the absence of a legally enforceable right
a writ of mandamus cannot be prayed for. I am not inclined to accept
the aforesaid submission of the respondents that the petitioner does not
have a cause of action. The petitioner is primarily aggrieved by the
alleged arbitrary assignment of duties by the respondent authority and
by acting contrary to the guidelines of their manual. A writ of
mandamus can always be issued commanding the respondents to act in
accordance with law.
The Ministry is the appropriate body to take a decision as to which
officer is to be posted where. The employee, as a matter of right, cannot
claim to be posted at a particular place and to perform a particular duty.
It is the sole and absolute prerogative of the employer to allocate duties
to the employees in the exigencies of service and in the best interest of
the administration. The employer ought to assign duties in a proper
manner and to take care that there is no resentment amongst the
employees. Instead of maintaining a congenial atmosphere at the
workplace the action of the respondent authority has brought two senior
medical superintendents of the Composite Hospital at gun points. Both
are levelling accusations against the other, and the Ministry is adding
fuel to fire.
It is neither open for the court to enter into such trivial disputes,
nor does the Court have the expertise to direct what duties to be allotted
to the warring doctors, but keeping in mind the interest of the patients,
in the midst of the pandemic, the Court is compelled to exercise
jurisdiction in the matter.
The Ministry is directed to revisit the order regarding
posting/transfer of both the medical superintendents in the light of the
order passed by the Hon'ble Division Bench on 25th August, 2020 within
ten days. In the event the Ministry is of the considered opinion that
service of both the medical officers are genuinely required in the 50
bedded Composite Hospital at Kolkata, then the medical officers shall be
allotted duties in such a manner that both have equal opportunities to
serve the people. Duties shall be allotted to extract the best possible
service of the senior doctors. One officer should not be bogged down
with heavy duty practically leaving no work for the other. The post,
status and pay of the two doctors being the same, both should be
treated in like manner and one should not be made to feel or act as
subordinate to the other. If the Ministry is of the considered opinion that
the duties of the two doctors are evenly distributed, then the Ministry
may swap the duties allotted to the doctors. The duties presently
allotted to the petitioner may be allotted to Dr. Chakraborty and the
duties of Dr. Chakraborty may be allotted to the petitioner. All necessary
steps shall be taken to ensure that service to the patients of the hospital
is not hampered or jeopardised in any manner whatsoever due to the
infighting between the two superintendents.
WPA No 7857 of 2020 is disposed of.
No costs.
Urgent certified photocopy of this judgment, if applied for, be
supplied to the parties or their advocates on record expeditiously on
compliance of usual legal formalities.
(Amrita Sinha, J.)
