Provincial Medical Service Association Uttar Pradesh v. Commissioner Azamgarh Mandal Azamgarh

R.K. MAHAJAN, J.

This order in writ petition No. 24151 of 1996 would also dis pose of writ petition No. 26134 of 1996, writ petition No. 26385 of 1996 and writ petition No. 26135 of 1996 as common question of law and facts are involved.

2. The aforesaid writ petitions have been moved by the Provincial Medical Ser vice Association and also in individual capacity by the Doctors.

3. In writ petition No. 26385 of 1996 filed by Dr. Jitendra Kumar Singh and another an additional point is involved i. e. his transfer was stayed on 1. 11. 1991 in writ petition No. Nil of 1991 (Annexure No. 4) to the writ petition). The order dated 1. 11. 1991 is as under:

"issue Notice.

Until further orders of this Court the opera tion of order dated 31. 7. 1991 and 30. 7. 91 (an-nexures 1 and 2 to the writ petition) shall remain stayed. "

4. Shri V. R. Upadhyay, learned coun sel for the petitioner has submitted that

LBESHJrovincial Medical Service Association v. Commissioner, Azamgarh Mandal 209)

unless the stay order is vacated the present transfer could not have been made.

5. The brief facts in which all these writ petitions have arisen are that the Govern ment transferred the petitioners of different writ petitions who are Medical Officers Class-II in the Divisions by the Additional Director Medical Health with the approval of the Commissioner. The scale of these Doctors is Rs. 2200 Rs. 4000. It is alleged that the grievance of petitioner is that at present the petitioners are working in the pay scale of Rs. 3000/- Rs. 4,500/- (An-nexure No. 2) to the writ petition No. 26385 of 1996 and as such they could be trans ferred by the Director General with the ap proval of the Secretary, Medical Health and since this has not been complied with, the transfers of the petitioners are illegal and invalid. They have prayed for quashing of the transfers. There is also an allegation that the maximum quota allowed for transfer is 15% of the entire strength of the District and beyond it approval of the Governor is essential. There is also an allegation but which has not been pressed that they have been transferred on the ground that they are indulging in activities which are immoral and not in public interest. It may be men tioned that the chart Annexed i. e. Annexure No. 2 to the writ petition No. 24151 of 1996 shows the stay of the Doctors is 8 to 9 years except serial No. 5 Dr. Awdhesh Kumar whose stay is less than one year and whose transfer has been cancelled by the Govern ment and the Government was also fair to

adjust the couple Dr. Awadhesh Kumar (petitioner No. 5) and Dr. Latika Viswas (petitioner No. 9) which names were deleted from array of parties with permis sion of Court.

6. The respondents have filed counter-affidavit in writ petition No. 24151 of 1996 and a statement has been made by Sri S. G. Hasnain, Additional Chief Standing Coun sel that the same counter-affidavit be adopted in all the other writ petitions. The plea of the respondents as contained in paras No. 4 and 5 of the counter-affidavit it is that the Azamgarh Division consists of four districts, namely, Azamgarh, Jaunpur, Mau and Ballia. There are 510 Doctors working in different Primary Health Centres as well District Civil Hospital. It is an admitted case that these Doctors are in the grade of Rs. 2200/- Rs. 4000/- and their services have been recognised as Grade-II Medical Officer. It is also averred that there is policy decision that the Doctors who have completed more than five years satisfactory service are entitled to the Grade of Rs. 3000/- Rs. 5000/- in their personal capacity and they were granted of this scale but they remained as Grade-II Medical Officers in the post of ordinary grade. It is evident by the Government order dated 12. 7. 1996 (Annexure No. 1 to the writ petition). Since the Doctors were in Class-II and the Government gave them the next scale after completion office years satisfactory service, so the powers of the Additional Director, Medical Health and Family Planning, Azamgarh have not been taken away at all. It is also averred that according to clause Kha of the Government Policy dated 12. 7. 1996 the Doctors who have completed more than seven years they are liable to be transferred from one District to another District within their region and only sixty-seven Doctors have transferred and the per centage comes to 13. 4% and which is within the prescribed limit of 15%. In view of the these facts the action of the Government has been justified.

7. Shri Dinesh Dwivedi, learned coun sel for the petitioners has submitted that in spite of scale of Rs. 3000/- Rs. 4500/- given the Additional Director under Clause B of the Government order could not have made a transfer as they fall in the category c of the Government Order. He has laid em phasis more than required on actual pay drawn and according to the pay drawn the learned counsel argued that the proposal should have been initiated by the Director General and approval of the Government was imperative. The same arguments have been advanced by Shri Upadhyay another learned counsel appearing for the petitioner.

8. We are of the view that the submis sion of learned counsel for the petitioners are apparently facile and lack force on the following reasonings.

9. The Government employees are put in a grade of Rs. 2000/- Rs. 4000/- and there was a revision in their pay-scale which was nothing but an incentive given after comple tion of five years of service and it did not change the status of Class-II service at all. Moreover, the Doctors remained in the same Division

and they have served more than seven years. The transfer is a routine incidence of service and Government in its wisdom and to give effect to the policy of transfers which are routine feature of ser vice are not subject to judicial review and unless they are actuated by mala fides, ex traneous and irrelevant considerations. We do not find such material in this cases.

10. We are also of the considered view that the Government has delegated the powers to the Additional Director Medical Health and this power is to be exercised in consultation with the Commissioner to give effect to the de-centralisation policy and concentration of power is not possible in such a gigantic administrative set up of big State like Uttar Pradesh at the Secretariate level.

11. The submission of Shri Upadhyay in writ petition No. 26385 of 1996 that there is no proper delegation is of no force. Shri Upadhyay has also relied upon (1994) 2 SCC 410 Dr. Ramesh Chandra Tyagiv. Union of India and others in which it was held that competent authority to order. Delegation of power Secretary competent authority but order of transfer of appellant issued by Director General claiming to be delegated authority. Delegation must exist on the date of passing of transfer order. Office notings revealing that no order delegating power to Director General existing on the date of issuance of the transfer order. Instead of cancelling that order and issuing a fresh order, second order issued in continuation of the earlier one directing the appellant to join at the transferred place of posting. First transfer order issued by a subordinate authority having no delegated power at that time was invalid and non east and conse quently the second order, founded on it, also could not stand.

12. The ratio of the aforesaid ruling does not apply in this case as in the present case there is proper delegation.

13. Shri Upadhyay, learned counsel for the petitioner further submitted that the petitioners children are studying in English Medium School Holy Cross High School, Ballia and there is no facility in Jaunpur district. It may be mentioned here that the submission of learned counsel for the petitioner cannot be accepted as he has completed more than five years service and the Government has a right to transfer.

14. In our considered view, the submis sion of Shri Upadhyay that the petitioners cannot be transferred in mid-session is not available in this case as transfer is effected in July and not in the middle of year. The State always take into consideration the public interest/or administrative reasons. The petitioner got his transfer stayed in writ petition No. Nil of 1991 and the said writ petition has not come up for hearing. Shri Upadhyay submits that unless the stay order is vacated or the case is decided the transfer

order cannot be made and it will not be proper to pass any order in view of the earlier stay order passed by this Court.

15. In our view, this is a lame argu ments and has no legs to stand as the stay order was limited for only that year. It is not blanket order to continue till eternity and such interpretation would be against com- monsense and apparently ridiculous and is not tenable. That writ petition in our view has become infructuous with the passage of time. In a big High Court like Allahabad it is very difficult to keep under control the track of the petitions and the interested persons who get stay orders of this nature for one reason or other, on different reasons do not want early listing of the matter. The State is also not interested for so many reasons, may be on account of improper monitoring and indifferent and listless attitude. In actual practice the State receives notice and then forgets to oppose the petitioners. We sug gest that it is expected from the Registry that they should list such type of cases after put ting them in computer within three months or in a reasonable time as fixed by the Registry and the same can be decided at the earliest so that the pendency of the cases may cut down, it is hoped that this observa tion may be brought to the notice of the Honble the Chief Justice on administrative side by the Registrar. The copy be sent to Registrar.

16. We are thus of the view that these cases are not fit for exercising discretionary powers under Article 226 of the Constitu tion of India.

17. In view of the aforesaid discussions the writ petitions are dismissed. Parties will bear their costs. Petitions dismissed.