Dr. Chandeshwar Rajak vs The State Of Bihar
2021 Latest Caselaw 3927 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.8138 of 2020
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Dr. Chandeshwar Rajak S/o Late Bishwanath Rajak, Resident of Village- Bishanpur, Mohanpur Chaumukh, P.S. Bihariganj, District-Madhepura at Present Posted as a Medical Officer, Sub Divisional Hospital, Mohania (Kaimur), District-Bhabhua.

... ... Petitioner Versus

1. The State of Bihar Bihar

2. Principal Secretary, Health Government of Bihar, Patna.

3. Joint Secretary, Health Department, Government of Bihar, Patna.

4. Deputy Secretary, Health Department, Government of Bihar, Patna.

5. Director in Chief, Health Service, Government of Bihar, Patna.

6. Regional Deputy Director, Health Services, Patna Division, Patna.

7. Collector, Bhabhua.

8. Civil Surgeon Cum Medical Officer, Kaimur (Bhabhua) District-Bhabhua.

9. Dr. Awadhesh Kumar Das, S/o not Known to the Petitioner Medical Officer, E.P.H.C. Bamhow Sub-Divisional Hospital, Mohania.

... ... Respondents ====================================================== Appearance :

     For the Petitioner    :      Mr.Rajiv Kumar Singh
     For the Respondents   :      Mr.S.D. Yadav (AAG 9)

====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 03-08-2021

This matter has been taken up for hearing online because

of COVID-19 pandemic restrictions.

2. There appears to be a typographical mistake in

describing the petitioner's name in the writ petition. Apparently,

out of inadvertence, the petitioner's name has been typed as Dr.

Chandeshwar Rajak in place of Dr. Chandeshwari Rajak. Patna High Court CWJC No.8138 of 2020 dt.03-08-2021

3. Learned counsel for the petitioner has submitted that

he may be permitted to correct the petitioner's name.

4. Let the petitioner's name be treated to be Dr.

Chandeshwari Rajak for all purposes of the present writ

application, as I am satisfied with the bonafide of the mistake on

perusal of the documents on record.

5. Let necessary corrections be made in the cause title of

the writ petition.

6. The petitioner is a member of Bihar Health Service.

Briefly narrated the case of the petitioner is that while posted as

Deputy Superintendent-cum-Drawing Disbursing Officer, Sub-

Divisional Hospital, Mohania, under telephonic instruction of the

Health Minister, Government of Bihar, he has been made to work

as Medical Officer in the said hospital under an order dated

01.09.2020 issued by the Civil Surgeon-cum-Chief Medical

Officer, Kaimur. By the said order he had been directed to give his

charge to respondent no. 9. It is the petitioner's case that he is

senior to respondent no. 9 in the cadre of Bihar Health Service

and, therefore, he could not be compelled to work under an officer

who is junior to the petitioner in the seniority list. The petitioner

accordingly filed the present writ application seeking quashing of

the said order dated 01.09.2020 issued by the Civil Surgeon-cum- Patna High Court CWJC No.8138 of 2020 dt.03-08-2021

Chief Medical Officer (respondent no. 8). The petitioner has a

grievance that an officer junior to him could not be made the

petitioner's Drawing and Disbursing Officer. According to the

impugned order issued at the oral direction of the Health Minister,

Government of Bihar is arbitrary illegal and unsustainable. A

seniority list has been brought on record by way of Annexure-5 to

the writ application to demonstrate that the petitioner is senior to

respondent no. 9.

7. The petitioner has relied on a letter dated

18.07.2019 issued by the Health Department, Government of

Bihar addressed to the Civil Surgeon, Bihar wherein it has been

specifically mentioned that in no circumstance, Doctors posted by

the department at a particular place should be transferred and

posted to a different place, at the local level nor they should be

deputed without prior permission of the department. The said

letter further prescribes that such Doctors whose services are

placed under a surgency or those who are found in excess or those

who joined after availing the study leave etc. in the surgency, they

can be deputed/posted as per the requirement under intimation to

the department. It is the petitioner's grievance that the action in

issuing the order dated 01.09.2020 on the basis of telephonic Patna High Court CWJC No.8138 of 2020 dt.03-08-2021

instruction of the Health Minister, Government of Bihar is in

breach of the guidelines contained in the letter dated 18.07.2019.

8. This is undisputed that the petitioner's original

posting was as Medical Officer at Additional Primary Health

Center, Bahuara, Mohania (Kaimur) whereas respondent no. 9 was

posted as Medical Officer at the Additional Primary Health

Center, Bamhour (Kaimur). It is the petitioner's case that whereas

the petitioner is posted at A.P.H.C., Bahuara since 14.11.2016,

respondent no. 9 is posted at A.P.H.C., Bamhour since 12.11.2009.

It is thus the petitioner's case that respondent no. 9 has remained

posted in the District for more than 11 years.

9. When the matter was taken up by this Court on

07.10.2020, considering the fact that the petitioner had remained

posted at Sub-Divisional Hospital, Mohania since 2016, the Court

had made an observation that the respondents may consider

transferring him from the said post to any other appropriate place

in the meanwhile. The said observation was made, considering the

petitioner's grievance that he has been made to work under a

person, who is junior to him.

10. In response to the said observation, a

supplementary counter affidavit has been filed on behalf of the

State respondents sworn by the Additional Director, Health Patna High Court CWJC No.8138 of 2020 dt.03-08-2021

Department, Government of Bihar from which, it transpires that

the petitioner has been transferred from Additional Primary Health

Center, Bahuara, Mohania Kaimur to Community Health Center,

Karakat, Rohtas, as Medical Officer. A rejoinder affidavit has been

filed on behalf of the petitioner stating therein that respondent no.

9, who is fairly junior to the petitioner, is posted since 12.11.2009

and has been given higher responsibility of In-charge Deputy

Superintendent whereas the petitioner, who is Senior Medical

Officer, has been transferred in a block level Community Health

Center.

11. Mr. Rajiv Kumar Singh, learned counsel

appearing on behalf of the petitioner has vehemently argued that

keeping in mind the petitioner's seniority he could have been

transferred and posted at Sub-Divisional level or District level but

ignoring his claim, a person fairly junior has been given higher

charge, which is illegal and arbitrary. He has drawn my attention

to a notification dated 25.09.2000 issued by the Health

Department, Government of Bihar in pursuance of certain orders

passed by this Court in C.W.J.C. No. 4036 of 1999 (Ram Prakash

Kushwaha v. The State of Bihar and Others) relating to transfer

and posting of Medical Officers working in a District for ten years

or more. He has submitted that the petitioner has been Patna High Court CWJC No.8138 of 2020 dt.03-08-2021

discriminated against and inasmuch as he has been transferred

nearly four and a half years after his posting, other Doctors who

are posted in the District of Kaimur for longer period, have not

been touched.

12. The petitioner has filed a representation dated

01.07.2021 addressed to the Principal Secretary, Health

Department, Government of Bihar seeking stay of his transfer to

Community Health Center, Karakat (Rohtas). He has contended

that this Court should hold the action of the respondents in

transferring the petitioner from one District to another on

whimsical grounds to be illegal and arbitrary. He has also

submitted that the Principal Secretary, Health Department,

Government of Bihar be directed to dispose of the petitioner's

representation against his transfer to Community Health Center,

Karakat and till a final decision is taken on the petitioner's

representation, the order of his transfer dated 30.06.2021, be

stayed.

13. It is evident from the facts pleaded in the writ

petition that the petitioner was posted by Government notification

dated 30.06.2015 at A.P.H.C., Bahuara, Mohania in the District of

Kaimur. Evidently, he was functioning as Deputy Superintendent-

cum-Drawing and Disbursing Officer, Sub-Divisional Hospital, Patna High Court CWJC No.8138 of 2020 dt.03-08-2021

Mohania by way of local arrangement. Dr. Awadhesh Kumar Das

(respondent no. 9) was posted as Medical Officer at A.P.H.C.,

Bamhour (Kaimur), by notification dated 13.10.2009 and he also

has been shown to be working in Sub-Divisional Hospital,

Mohania, subsequently given the charge of Deputy

Superintendent-cum-Drawing and Disbursing Officer of the said

Sub-Divisional Hospital, Mohania apparently by way of local

arrangement. There does not appear to be any notification issued

by the State Government deputing either the petitioner or

respondent no. 9 against any post at Sub-Divisional Hospital,

Mohania. It is difficult for this Court on the basis of facts which

are undisputed to discern as to how these arrangements were

allowed to be made and the Doctors working in A.P.H.C. were

made to work in Sub-Divisional Hospital without any State

Government notification, contrary to their respective places of

postings. It can be easily understood that the health service at

Additional Primary Health Centers (A.P.H.Cs.) where the

petitioner and respondent no. 9 were originally posted must have

suffered because of the arrangement made at local level by

deputing them in Sub-Divisional Hospitals. Secondly, the Court

fails to understand the circumstance in which, the respondent no. 9

has been allowed to remain in the same district since 2009. The Patna High Court CWJC No.8138 of 2020 dt.03-08-2021

petitioner has given the names of such Doctors in his

representation, which has been brought on record by way of

Annexure-16 to the writ application, who have remained posted in

the District of Kaimur for period longer than the petitioner's

period of posting in the said District.

14. The petitioner's plea that because of his

seniority, he should have been given higher responsibility and at

least responsibility equivalent to an officer junior to him, has not

been duly addressed by the State respondents.

15. Be that as it may, it cannot be said that the

petitioner has been able to make out a case that the post to which

the petitioner has been posted by subsequent notification dated

30.06.2021 is an inferior charge, which could not have been given

to the petitioner. It is settled principle that the Court exercising

power of judicial review does not interfere with an order

transferring a government servant from one place to another

unless the same is found to be beyond jurisdiction, in breach of

statutory provision or malafide. It is not the petitioner's case that

with his posting at Community Health Center, Karakat, he will

have to serve under any officer junior to him in the seniority list or

in rank. Nothing has been shown to this Court on the basis of

which it can be concluded that the said order is in breach of any Patna High Court CWJC No.8138 of 2020 dt.03-08-2021

statutory provision. The challenge to the order dated 01.09.2020

issued by the Civil Surgeon-cum-Chief Medical Officer, Kaimur,

which has lost its relevance after issuance of the subsequent

notification dated 30.06.2021. The said notification dated

30.06.2021 is not under challenge in the present writ application.

16. Be that as it may, the petitioner may have a valid

grievance of discrimination on the ground that Medical Officers

have been allowed to continue for considerably longer period in a

particular District and Officers junior to him have been given

higher responsibility, which is humiliating and cause undue

harassment.

17. In such view of the matter, this application is

disposed of with a direction to the Principal Secretary, Health

Department, Government of Bihar to consider the petitioner's

representation dated 01.07.2021, which has been brought on

record by way of Annexure 16 to the rejoinder filed on behalf of

the petitioner to the State's supplementary counter affidavit and

pass a reasoned order within a period of two months from the date

of receipt/production of a copy of this order.

18. The Principal Secretary, Health Department,

Government of Bihar will be under an obligation to record in his

order, reasons why, Medical Officers have been allowed to remain Patna High Court CWJC No.8138 of 2020 dt.03-08-2021

posted in a District for several years, as mentioned in the said

representation. Further, the Principal Secretary, Health

Department, Government of Bihar should also be under obligation

to discuss in his speaking order, the petitioner's claim of getting

higher responsibility at least, equivalent to such medical officers

who that have been assigned to Medical Officers junior to him.

19. This application stands disposed of.

20. It is made clear that I have not interfered with

the transfer notification dated 30.06.2021 and accordingly the

petitioner shall not wait for disposal of the representation, for the

purpose of joining the place of his posting.

(Chakradhari Sharan Singh, J) AKASH/-

AFR/NAFR                NAFR
CAV DATE                N/A
Uploading Date          06.08.2021
Transmission Date       N/A