Allahabad High Court
Dr Dhananjay Anand vs State Of Up And 2 Others on 12 February, 2024
Author: Prakash Padia
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:23453 Court No. - 35 Case :- WRIT - A No. - 1954 of 2024 Petitioner :- Dr Dhananjay Anand Respondent :- State Of Up And 2 Others Counsel for Petitioner :- Adarsh Bhushan Counsel for Respondent :- C.S.C. Hon'ble Prakash Padia,J.
1. Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Adarsh Bhushan, learned counsel for the petitioner and learned Standing Counsel for the respondents- State.
2. The present petition has been filed challenging the order dated 24.11.2023 passed by the respondent No.2/Joint Secretary, Medical Health and Family Welfare, Anubhag 2 Government of U.P. Lucknow as well as order dated 19.01.2024 passed by the respondent No.1/Principal Secretary, Medical Health and and Family Welfare, Anubhag 2 Government of U.P. Lucknow. By the aforesaid order, the petitioner was transferred from Ghazipur to Varanasi.
3. Facts in brief as contained in the petition are that the petitioner is working as a Medical Officer/Consultant at Community Health Center, Bhadura District Ghazipur. The respondent No.2/Joint Secretary, Medical Health and Family Welfare, Anubhag 2 Government of U.P. Lucknow passed order dated 24.11.2023 by which the petitioner was transferred from Community Health Center, Bhadura District Ghazipur to Consultant District Women Hospital Varanasi. Aggrieved against the aforesaid transfer order, the petitioner as well as Provincial Medical Services Association U.P. Lucknow submitted various representations before the respondent No.1 with the request to cancel the transfer order of the petitioner on the ground that the petitioner is an office bearer and as per the transfer policy dated 07.06.2023 that the office bearers of Registered Association shall not be transferred for two years from the date of taking charge as office bearer in the Registered Association. Since no action was taken on the aforesaid representation, the petitioner has preferred Writ A No.20507 of 2023 (Dr Dhananjay Anand Vs. State of UP And Another) by which the transfer order dated 24.11.2023 was challenged. The aforesaid writ petition was disposed of with certain directions and keeping the aforesaid order in abeyance. The order dated 24.11.2023 is reproduced hereinbelow:-
1. Heard Sri R.K. Ojha, learned Senior Advocate assisted by Sri Shivendu Ojha, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and perused the record.
2. This Court on 11.12.2023 had passed the following order:-
"Petitioner, who is working as a Medical Officer, is aggrieved by the transfer order dated 24th November, 2023 and wants stay as per the transfer policy dated 7th June, 2023 on the ground that he has been elected for the first time as office bearer of the District Union of Medical Officers on 18th October, 2023 whereas transfer order has come to be passed on 24th November, 2023 and in this regard he has also relied upon the recommendation made by the Chief Medical Officer dated 26th November, 2023.
Learned Additional Chief Standing Counsel seeks a weeks' time to verify the aforesaid facts.
Time prayed for is allowed.
List on 20th December, 2023 amongst top 10 cases."
3. Learned Standing Counsel has obtained instructions and placed the same before the Court today, which is taken on record.
4. As per the instructions, it is not disputed that the petitioner has been elected, for the first time, as Office bearer of the Union, but vide paragraph-6 of the instructions, the only thing stated is that there is no absolute rule not to transfer such employees, who are elected as Office bearers.
5. Having heard learned counsel for the respective parties and their arguments raised across the bar, I am of the considered view that once a policy of transfer has been framed under the Government Order, like in the instant case on 06.07.2023, the government and its authorities should always honour it unless there are exceptional circumstances not to strictly adhere to the provisions contained under the transfer policy. There is no dispute that there is no absolute right vested with an employee, who holds a transferable post, but it is equally established rule that the government will not be violating its own stand taken in the government order just for transfer sake unless there are circumstances, which compel to transfer such employees, who are elected office bearers, in the administrative exigencies or in public interest.
6. In such above view of the matter, I consider it appropriate that the government should reconsider the matter of the petitioner. Accordingly, it is hereby provided that if, the petitioner makes a representation within a period of four weeks' from today with a prayer to recall the transfer order dated 24.11.2023, taking a pragmatic view of the matter that the petitioner has been elected office bearer for the first time, an appropriate order shall be passed by the authority concerned within a further period of four weeks.
7. Until such decision is taken by the authority, the order of transfer dated 24.11.2023, shall remain in abeyance and petitioner shall be permitted to continue at the place, where he was working on the date of passing of transfer order, and shall be paid salary for the same.
8. With the aforesaid observations, the writ petition stands disposed of.
3. Pursuant to the aforesaid order passed by this Court, fresh order of transfer dated 19.012024 has been passed by the respondent No.1/Principal Secretary, Medical Health and and Family Welfare, Anubhag 2 Government of U.P. Lucknow.
4. It is argued by learned counsel for the petitioner that though the specific direction was given by this Court to the respondent No.1 to decide the representation taking into consideration the Government Order/Transfer Policy dated 07.06.2023 but while passing the order impugned, the respondent No.1 did not consider the aforesaid policy. The relevant portion of the aforesaid policy reads as follows:-
"??????? ?? ?????? ?? ?? ??????????? ???? ??? ?? ???????? ?? ?? ??????? ??? ???? ?? ?? ????????? ???????????? ??? ????? ???? ?? ?????????????? ?????????? ??????????? ???? ?? ???? ??? ????????? ?? ?? ???? ??? ????? ????? ???????????? ???????? ???? ????????? ?? ???????????? ???????? ?? ?? ????? ???? ???? ???? ????? ???????? ?????????? ?? ?? ????? ???? ???? ?? ???????? ???? ??????? ??? ?????????? ?? ?????? ?? ??????????? ?? ???????? ????? ??? ??????????? ????, 2023-24 ??? ???????? ??????????? ?? ???? ??? ????? ???? ?? ?????????????? ???? ??? ????? ????? ?? ???? ??????? ?? ???????????? ???? ??? ???? ????? ??????????, ??????? ??? ??????????? ?? ?? ?? ????? ???? ??? ??? ??? ????? ?? ???????? ???? ??? ????? ????? ?? ???? ??????? ?? ???? ????? ??????????, ??????? ???? ??? ??????????? ?????? ???? ???? ???? ????? ? ??? ?????? ?????? ???? ???"
6. On the other hand, it is argued by learned Standing Counsel that after taking into consideration of all aspects of the matter, the respondent No.1 passed the order impugned.
7. When a pertinent quarry has been made by this Court whether directions given by this Court in its order dated 20.12.2023 was complied with by the respondent No.1 while passing the order impugned, learned Standing Counsel could not denied the same that the order impugned has been passed in violation of the order passed by this Court 20.12.2023.
8. Heard learned counsel for the parties and and with the consent of learned counsel for the parties the present petition is disposed of.
9. Since the order dated 19.01.2024 has been passed by the respondent No.1/Principal Secretary, Medical Health and and Family Welfare, Anubhag 2 Government of U.P. Lucknow in violation of the directions given by this Court in its order dated 20.12.2023, the same is liable to be set aside and order dated 19.01.2024 is hereby set aside.
10. The respondent No.1 is directed to pass fresh order in the matter in view of the directions given by this Court in its order dated 20.12.2023 within a period of two months from the date of production of certified copy of this order.
11. Until such decision is taken by the authority, the order of transfer dated 19.01.2024, shall remain in abeyance and petitioner shall be permitted to continue at the place, where he was working on the date of passing of transfer order, and shall be paid salary for the same.
Order Date :- 12.2.2024 saqlain