Karnataka High Court
Dr Sanjeev Katte S/O Mahadev vs The State Of Karnataka on 1 August, 2023
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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NC: 2023:KHC-D:8004-DB
WP No. 104220 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
WRIT PETITION NO. 104220 OF 2023
BETWEEN:
DR. SANJEEV KATTE S/O. MAHADEV,
AGE: 58 YEARS, OCC: DOCTOR,
R/O: RENUKA NIWAS, PLOT NO. 2772,
NEAR LOVEDALE SCHOOL,
MALMARUTI EXTENTION, BELAGAVI-590 016.
...PETITIONER
(BY SRI.PRASAD J. JOSHI AND SRI. RAVIRAJ C. PATIL, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA,
BY ITS PRINCIPAL SECRETARY TO GOVERNMENT,
DEPARTMENT OF HEALTH AND FAMILY WELFARE
SERVICES, (MEDICAL EDUCATION),
1ST FLOOR, VIKAS SOUDHA,
DR. AMBEDKAR VEEDHI, BENGALURU-560001.
Digitally signed
by JAGADISH T R 2. THE JOINT SECRETARY,
Location: HIGH DEPARTMENT OF HEALTH AND FAMILY WELFARE
COURT OF
KARNATAKA
Date: 2023.08.14
SERVICES, NO. 402, 4TH FLOOR, VIKAS SOUDHA,
16:41:53 +0530 BENGALURU-560 001.
3. THE COMMISSIONER,
DEPARTMENT OF HEALTH AND FAMILY WELFARE
SERVICES, AROGYA SOUDHA, 5TH FLOOR,
MAGADI ROAD, BENGALURU-560 023.
4. THE DIRECTOR,
BELAGAVI INSTITUTE OF MEDICAL SCIENCES,
DR. B.R. AMBEDKAR ROAD, BELAGAVI-590 001.
5. THE DIVISIONAL JOINT DIRECTOR,
HEALTH AND FAMILY WELFARE SERVICES,
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NC: 2023:KHC-D:8004-DB
WP No. 104220 of 2023
VACCINE DEPOT, TILAKWADI,
BELAGAVI-590 006.
6. THE REGIONAL COMMISSIONER,
BELAGAVI DIVISION, BELAGAVI,
IN CHARGE ADMINISTRATOR,
B.I.M.S., BELAGAVI-590 001.
...RESPONDENTS
(BY SRI.G.K.GIREGOUDAR, GOVT. ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF CONSTITUION OF INDIA PRAYING TO A) TO SET ASIDE
IMPUGNED ORDER PASSED BY KARNATAKA STATE ADMINISTRATIVE
TRIBUNAL, BELAGAVI IN APPLICATION No.11291/2022 VIDE ORDER
DATED. 15/02/2023 AT ANNEXURE-B SO FAR AS PRAYER NO.01 TO
QUASH ORDER BEARING NO.AA.KU.KA.414 H.S.H. 2022 DATED
22/08/2022 AT ANNEXURE-A1 PASSED BY RESPONDENT NO.1 IS
CONCERNED AND ETC.,
THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY,
S.R.KRISHNA KUMAR J., PASSED THE FOLLOWING:
ORDER
This petition arises out of the impugned order dated 15.2.2023 passed in Application 11291/2022 by the Karnataka State Administrative Tribunal, Belagavi (for short, 'Tribunal') insofar it relates to rejection of prayer of the petitioner for setting aside the impugned transfer order dated 22.08.2022 passed by the respondents.
2. Heard the learned counsel for the petitioner and learned Government Advocate for the respondents/State and perused the material on record.
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3. The material on record discloses that on 9.7.2021, the respondents passed transfer order transferring the petitioner to the post of District Surgeon, Belagavi, pursuant to which, when the petitioner/applicant reported to duty and sought for approval to join the post, the same was not considered by the respondents, as a result of which, he approached the Tribunal in Application No.10878/2021, which was disposed of on 24.8.2021 directing consideration of his representation. Since there was no consideration subsequently, the petitioner approached the Tribunal in contempt proceedings in CTA No.1081/2021. Meanwhile, the respondents challenged the earlier order dated 24.8.2021 passed in Application No.10878/2021 by preferring writ petition in WP No.101136/2022. In the said petition, on 10.08.2022, this Court passed the following order:
The respondent No.1 was posted to work as District Surgeon, Belagavi under notification dated 09.07.2021 (Annexure-B2). In pursuance to Annexure-B2, the respondent No.1 reported at the appellant institution on 12.07.2021 as per Annexure B3. The appellant under proceedings dated 05.10.2021 (Annexure-D) refused to accept duty report of the respondent No.1.-4-
NC: 2023:KHC-D:8004-DB WP No. 104220 of 2023 It is brought to our notice that the respondent No.1made representation to the Commissioner for Health and Family Welfare Services and subsequently filed application before the Karnataka State Administrative Tribunal (KSAT) seeking implementation of the notification dated 09.07.2021. From the date of filing the application before the KSAT it was within the knowledge of the respondents No.2 and 3 that the duty report of the respondent No.1 is not accepted by the appellant herein and the respondent No.1 is without posting since for the last one year. The respondents No.2 and 3 have not taken any action to provide posting to respondent No.1 and would be responsible for payment of salary to respondent No.1 without getting any work from him.
This Court by order dated 25.05.2022 passed the following order.
"Learned counsel appearing for respondent No.1 grieves before the Court that since 9.7.2021, his client has not been given posting nor has he been paid salary; if this is true, then it is not a happy thing to happen to any employee. The question being posed, learned Government Advocate submits that he would confer with his client and come back with some solution. If things do not improve by next date of hearing, the Court may think of some stringent action against quarters that be.
A carbon copy of this order be shared with the learned Government Advocate and Advocate appearing for respondent No.1."
Inspite of the above order, the respondents No.2 and 3 have failed to provide any posting to respondent No.1. Therefore, issue show cause notice to respondents No.2 and 3 to show cause as to why contempt proceedings shall not be initiated against them for disobedience of the order of this Court dated 25.05.2022.
List this matter on 22.08.2022.
Both the respondents No.2 and 3 are directed to be present before the Court on the next date to explain -5- NC: 2023:KHC-D:8004-DB WP No. 104220 of 2023 as to why action should not be initiated for contempt for disobedience of the order of this Court dated 25.05.2022. In the meanwhile, if the respondents No.2 and 3 provide posting to respondent No.1, they need not be present before the Court but they have to submit their explanation.
Registry is directed to make available a copy of this order to the learned Government Advocate, forthwith.
4. Pursuant thereto, the respondents passed impugned transfer order dated 22.08.2022 providing posting to the petitioner as Casualty Medical Officer, General Hospital, Khanapur, Belagavi District. The said transfer order was produced before this Court when the matter was posted for hearing on 22.08.2022, pursuant to which, this Court disposed of the said WP 101136/2022, vide final order dated 22.08.2022 as having become infructuous taking note of the submission of learned counsel for the petitioner that the petition would not survive for consideration by holding as under:
This writ petition is directed against the order dated 24.8.2021, in Application No.10878/2021, passed by the Karnataka State Administrative Tribunal, Bench at Belagavi.-6-
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2. Heard the learned counsel Shri Veeresh Budihal, appearing for the petitioner, learned counsel Shri Jagadish Patil, appearing for respondent No.1 and the Government Advocate Shri G.K.Hiregoudar, appearing for respondents No.2 to 4.
3. This Court, by order dated 25.5.2022, passed the following order.
"Learned counsel appearing for respondent No.1 grieves before the Court that since 9.7.2021, his client has not been given posting nor has he been paid salary; if this is true, then it is not a happy thing to happen to any employee. The question being posed, learned Government Advocate submits that he would confer with his client and come back with some solution. If things do not improve by next date of hearing, the Court may think of some stringent action against quarters that be.
A carbon copy of this order be shared with the learned Government Advocate and Advocate appearing for respondent No.1.
Call this matter on 7.6.2022."
4. As the respondents failed to comply the above order, this Court by order dated 10.8.2022, directed respondents No.2 and 3 to show cause as to why action should not be initiated for disobedience of the order dated 25.5.2022. This day, learned Government Advocate files a memo dated 22.8.2022 enclosing a notification dated 22.8.2022 providing posting to respondent No.1 as Casualty Medical Officer, General Hospital, Khanapur, Belagvi district.
5. In view of the above notification, the learned counsel for the petitioner submits that the writ petition would not survive for consideration. Taking note of the above submission, the writ petition is dismissed as having become infructuous.
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5. In addition thereto, this Court on 22.08.2022 called for an explanation from respondents No.2 and 3 and listed the matter on 2.9.2022, on which date, this Court passed the following order:
Respondent No.1-Dr. Sanjeev Katte is working as Senior Specialist (Forensic Science) in the Department of Health & Family Welfare (Services). By Notification dated 9.7.2021, respondent No.1-Dr. Sanjeev Katte was posted to work as District Surgeon, Belagavi Institute of Medical Sciences, Belagavi (for short, 'BIMS') against a vacant post on account of retirement of one Dr. M.M. Hussainsab Khaji. Respondent No.1/Dr.Sanjeev Katte is said to have reported to BIMS on 12.07.2021 in terms of Duty report dated 12.07.2021 (Annexure-B3). Since acceptance of duty report of respondent No.1-Dr. Sanjeev Katte was kept pending by BIMS, respondent No.1 approached the Karnataka State Administrative Tribunal, Belagavi (for short, 'Tribunal') in Application No.10878/2021 praying for a direction to the petitioner herein (BIMS) to handover charge in terms of Notification dated 9.7.2021. The Tribunal by its order dated 24.08.2021 directed the petitioner herein (BIMS) to consider the representation dated 16.07.2021 and 27.07.2021 submitted with regard to acceptance of duty report and to pass appropriate orders in accordance with law. In terms of order of the Tribunal, BIMS passed order dated 5.10.2021 refusing to accept the duty report of respondent No.1-Dr. Sanjeev Katte, a copy of which was also submitted to the Principal Secretary, Health & Family Welfare Services and Commissioner, Health and Family Welfare Services.
2. Even though it was well within the knowledge of respondent No.2/Principal Secretary, who was respondent No.1 before the Tribunal in Application No.10878/2021 that duty report of respondent No.1-Dr. Sanjeev Katte was not accepted by the petitioner herein (BIMS), when it received notice from the Tribunal in the -8- NC: 2023:KHC-D:8004-DB WP No. 104220 of 2023 said application, respondent No.2/Principal Secretary failed to take any action against petitioner(BIMS) for not accepting the duty report of respondent No.1-Dr. Sanjeev Katte nor made any effort to provide alternate posting to respondent No.1-Dr. Sanjeev Katte. Posting to respondent No.1-Dr. Sanjeev Katte was provided only at the instance of this Court, under Notification dated 22.08.2022 posting him as Casualty Medical Officer, General Hospital, Khanapur, Belagavi District.
Respondent No.1-Dr. Sanjeev Katte was without posting for more than a year. State Government, on one hand, would say that there is dearth of doctors and on the other hand, is not providing posting to doctors, who are without posting.
3. Whether respondent No.1-Dr. Sanjeev Katte would be entitled for salary from 9.7.2021, the date on which he was provided posting to BIMS till alternate posting under Notification dated 22.08.2022 treating the said period as compulsory waiting, is a matter that is to be decided. If at all, if it is held that he would be entitled for salary, the same is to be paid without getting any work from respondent No.1/Dr. Sanjeev Katte only on account of total inaction on the part of respondent No.2- Principal Secretary or respondent No.3-Commissioner.
4. By order dated 22.08.2022, this Court directed respondents 2 and 3 to file an affidavit explaining the circumstances under which posting was not provided to respondent No.1. Today, respondent No.2/Principal Secretary, Department of Health & Family Welfare (Services) has filed an affidavit dated 26.08.2022. There is no explanation whatsoever in the affidavit for not providing posting to respondent No.1 for more than a year.
5. Sri. G.K. Hiregoudar, learned Government Advocate would submit that respondent No.1/Dr. Sanjeev Katte ought to have approached respondent No.2-Principal Secretary immediately when his duty report was not accepted by the petitioner/BIMS seeking alternate posting. As the respondent No.1/Dr. Sanjeev Katte failed to approach respondent No.2 seeking reposting/alternate posting, respondent No.2 could not provide posting to respondent No.1. Respondent No.1- -9- NC: 2023:KHC-D:8004-DB WP No. 104220 of 2023 Dr. Sanjeev Katte not approaching respondent No.2 seeking reposting/alternate posting cannot be a reason for non-providing reposting/alternate posting to respondent No.1/Dr. Sanjeev Katte. It was well within the knowledge of respondent No.2, who is a party to Application No.10878/2021 that BIMS refused the duty report of respondent No.1/Dr. Sanjeev Katte and that Dr. Sanjeev Katte is without posting. When it comes to the notice of the Government that a government servant is without posting, it is the duty and obligation of the Government to provide posting to such government servant, otherwise it would lead to a situation of paying salary to such government servant without getting any work from the said government servant, which would burden the exchequer and also amounts to waste of public money.
6. Therefore, we are of the view that the Government or Head of the Department shall not wait for government servant whose duty report is not accepted by the Authority where he/she is posted, to approach the government or head of department seeking reposting/alternate posting. Reposting/alternate posting shall be provided forthwith. Henceforth, if the government servant whose duty report is not accepted by the authority, where he/she is posted or if there is no vacant post, government or head of the department or transferring authority shall provide reposting or alternate posting forthwith without waiting for the government servant to approach the government or head of the department or transferring authority.
6. Subsequent to the aforesaid orders passed by the Tribunal as well as this Court referred to supra, the petitioner/applicant filed instant application in November, 2022 seeking following reliefs:
a) To set-aside impugned order passed by respondent No.1 vide order bearing
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NC: 2023:KHC-D:8004-DB WP No. 104220 of 2023 No.Aa.Ku.Ka.414 H.S.H. 2022 dated 22.08.2022 at Annexure-A1
b) To direct the respondents to make good of attendance of applicant to the service lost because of inaction of respondents and illegal impugned order and consequently remit the applicant arrears of the unpaid salary for the said period;
c) To grant such other and further relief/s as this Hon'ble Tribunal deems fit and proper under the circumstances of this application, in the interest of justice and equity.
7. The said application having been opposed by the respondents, the Tribunal proceeded to pass the impugned order allowing prayer-B directing disbursement and payment of salary in favour of the applicant/petitioner; however, Prayer-A regarding challenge to the transfer order dated 22.08.2022 was rejected by holding as under:
ORDER "The factual matrix of the case as available in the application is as below;
The applicant joined as Medical officer on contract in 1999 and was regularized in service of Health and Family Welfare department on 17.03.2006. He has pursued MD Forensic medicine and completed the same in 2017 and later worked as Forensic expert in District Hospital, Vijayapura. In 2019 he was posted as Senior Specialist and was also assigned responsibility of RMO at District Hospital and BIMS Teaching Institute. The District Surgeon, District Hospital and Director BIMS Teaching
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NC: 2023:KHC-D:8004-DB WP No. 104220 of 2023 Institute retired from service. On 09.07.2021 the applicant was posted by respondent No.2 in the vacant post arising out of retirement. However, his duty report in pursuance of this order was not approved by respondent No.4 and respondent No.6. His subsequent request for joining at BIMS vide his applications dated 16.07.2021 and 27.07.2021 were also not considered (Annexures-A8 and A-9). The applicant approached this Tribunal in A.No.10878/2021 which ordered the respondent Nos.4 and 6 to consider the representation made by the applicant and give effect to order dated 09.07.2021. The respondent Nos. 4 and 6 passed a speaking order on 05.10.2021 rejecting the request of the applicant and made it clear that his duty report cannot be accepted till a decision is made by Government of Karnataka. Not satisfied with said endorsement the applicant field contempt application in CTA No.1081/2021 before the Tribunal. However, the respondent filed W.P. No.101136/2022 in the Hon'ble High Court of Karnataka and the Hon'ble High Court of Karnataka has stayed the operation of the said order of the Tribunal. In view of this the contempt application at the Tribunal was dropped on 24.05.2022 (Annexure-A17). The Hon'ble High Court in W.P.No.101136/2022 order dated 22.08.2022 directed the respondent No.1 to provide posting to the applicant.
The respondent No.1 posted the applicant to the post of Emergency Medical Officer (Turtu Chikitsa Vaidyadhikari) at Government Hospital, Khanapur. It is the order dated 22.08.2022 (Annexure-A8) which the applicant is challenging at present on the ground that the post is below his qualification and seniority.
2. The learned Counsel for the applicant has strongly pleaded that the case on ground that the applicant has been subject to arbitrary orders. The applicant was posted on 09.07.2021 as District Surgeon and Director BIMS and respondent Nos. 4 and 5 having bias against the applicant did not issue the reposting order. His representations were not considered by respondent No. 5. The respondent No.6 as Administrator BIMS had no authority to refuse the applicant or to challenge the Government order. The applicant has filed application No.10878/2021 and this Tribunal directed the respondent Nos. 4 and 6 to consider the representation of the applicant and take suitable action within three weeks. Inspite of the order, the respondents did not take him on
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NC: 2023:KHC-D:8004-DB WP No. 104220 of 2023 duty. The respondent No.4 filed WP in Hon'ble High Court against the order of Tribunal and the direction of Tribunal was stayed. Due to Hon'ble High Court direction the applicant was provided posting on 22.08.2022 which is under challenge now on ground that Emergency Medical Officer (Turtu Chikitsa Vaidyadhikari) post is much below the qualification and experience of the applicant. The post of Director BIMS is still vacant and the applicant requests for necessary direction from this Tribunal for consideration of earlier order dated 09.07.2021. He has also prayed for release of unpaid salary.
3. Per contra, learned Counsel for respondent No.4 has argued that the applicant was relieved from duty from BIMS on 31.05.2021 hence he is not entitled to claim salary from the respondent No.4. By virtue of order dated 24.08.2021 of this Tribunal in A.No.10878/2021 a speaking order was passed by respondent No.4 and respondent No.6 on 05.10.2021. Inspite of this the applicant filed Contempt application alleging that the respondents have not complied with direction of the Tribunal. In WP No.101237/2022 the Hon'ble High Court directed for giving alternate posting to the applicant and same was provided on 22.08.2022 by posting him to Taluka Hospital Khanapur.
4. The learned Counsel for respondent No.4 has vehemently argued that the applicant was not taken on duty as District Surgeon and Director BIMS as he does not possess requisite qualification. He has not completed 20 years of service. Being regularized in 2006 he has completed only 15 years of service and his qualification as Forensic Science MD is para clinical the required qualification for the post of District Surgeon as per Government order dated 02.06.2011 is clinical. Lastly, he doesnot possess a good service track record being relieved from BIMS on 31.05.2021 due to gross negligence of duty during Covid for which an enquiry has been instituted. The respondent No.6 had intimated these facts to respondent No.1 vide his letters dated 13.07.2021 and 09.08.2021 to withdraw the posting order dated 09.07.2021 there was no action from Government. The respondent No.4 has argued that applicant's representation for reposting order was considered and a reasoned-out order was given on
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NC: 2023:KHC-D:8004-DB WP No. 104220 of 2023 05.10.2021for non-acceptance of his duty report on grounds of;
a) He is not fulfilling qualification of three years as Administrative officer/Taluka officer/ Programme officer to be eligible for being posted as District Surgeon.
b) Institution of enquiry against him for dereliction of duty for which he was relieved from BIMS on 31.05.2021 and on-going enquiry going against him vide order dated 19.05.2021 and 01.10.2021. Hence, the applicant has no ground for appeal and application be dismissed.
5. Supporting the arguments of the learned Counsel for respondent No.4 learned AGA has contended that the applicant has been posted to Khanapur as Emergency Medical Officer (Turtu Chikitsa Vaidyadhikari) which is not a demotion but being posted to a redesignated Deputy Chief Medical officer post. The post of chief medical officer, senior medical officer and general duty officer has been renamed as Emergency Medical Officer (Turtu Chikitsa Vaidyadhikari) vide Government order dated 29.05.2021 of respondent department. Hence, the contention of the applicant that the post of Emergency Medical Officer (Turtu Chikitsa Vaidyadhikari) is below his qualification is not correct. The post of BIMS Director is on deputation and he cannot claim to be posted there. It is the prerogative of the Government to post the best candidate for a post in the interest of public service. He has also not reported to the new post (Annexure-A1). Hence, his application be dismissed.
6. The learned Counsel for the applicant has questioned the authority of respondent No.4 and 6 in rejecting the application for reposting order. The learned Counsel for respondent No.4 has submitted that Respondent No. 1 was informed of all the reasons of why the applicant can't be taken for duty vide letters dated 13.07.2021 and 09.08.2021 and also as to why the applicant is not qualified to be posted as Director BIMS. As the respondent No.1 is the competent authority to decide and take appropriate action there was no action pending with him. As such the respondent No.4 and respondent No.6 have not done anything beyond their power. The copy of endorsement and reasoned out order dated 05.10.2021 was also sent to respondent No. 1 and given to the
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NC: 2023:KHC-D:8004-DB WP No. 104220 of 2023 applicant. As such there is no bias or malafide in the action of respondent No.4.
7. We have heard the learned Counsel for both parties and learned AGA for respondents. Admittedly, the applicant is medical officer and is MD in Forensic Medicine and was working in BIMS as Technical Expert since 2019. However, he was relieved from BIMS on 31.05.2021 due to negligence of duty in dealing with dead bodies during covid and was relieved and directed to report to respondent No.1. He was posted as District Surgeon and Director, BIMS on 09.07.2021 by respondent No.1. However, due to certain reservation in his qualification the administrator BIMS and respondent No.6 wrote to respondent No.1 to reconsider his posting. Aggrieved by this action of respondent Nos.4 and 6 the applicant has filed A.No.10848/2021 at the Tribunal who by its order dated 24.08.2021 remitted back the matter to respondent Nos. 4 and 6 to consider his representation for Issuing reposting order within three weeks. The respondent Nos. 4 and 6 issued a speaking order giving reasons for not taking him on duty and gave endorsement to him. This fact was suppressed by the applicant and he has filed the Contempt petition which was dismissed by Tribunal due to stay order by the Hon'ble High Court.
8. The Hon'ble High Court directed the respondent No.1 to pay his salary with effect from the date of issue of order dated 09.07.2021 till alternative posting order dated 22.08.2022. The Hon'ble High Court did not issue any direction to matter related to order dated 09.07.2021 but only touched upon dealing with issue of reposting orders in future.
9. The applicant has been now posted to Taluka Hospital of Khanapur as Emergency Medical Officer (Turtu Chikitsa Vaidyadhikari) which he is challenging. The applicant has not yet joined the duty on the ground that the order of transfer is vitiated by bad faith as it is in nature of punishment inflicted on him. He has attempted to substantiate that the present posting is much below his qualification and he should be posted as District Surgeon and Director. BIMS a post he was not allowed to join and which is still vacant.
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10. The learned Counsel for the applicant contends that the impugned transfer order dated 22.08.2022 is malafide and is irregular. A scrutiny of the Government order dated 29.05.2021 doesnot seem so. This order has renamed 700 posts of Chief Medical officers, Deputy Chief Medical Officer, Senior Medical officer and general duty medical officer available at district and taluka Hospitals as Emergency Medical Officer (Turtu Chikitsa Vaidyadhikari). As such the action by respondent No. 1 in posting him doesnot look colorable. Hence, we have reason to believe that it was issued in public interest and for administrative reasons. We donot find any irrelevant consideration in issue of this order.
11. Regarding the applicant's prayer for interference of Tribunal in earlier order dated 09.07.2021 it doesnot hold any ground as after issue of subsequent order dated 22.08.2022 the earlier order become infructuous and its currency gets over. Hence, the claim to the said post is neither desirable nor possible. Administrative convenience and necessity seem to have been given consideration in issue of impugned order dated 22.08.2022 by competent authority.
12. The other allegations levelled by the applicant has been denied by learned AGA on behalf of respondent and learned Counsel for respondent No.4. The respondent No.4 has admitted that due to certain reasons the duty report was not accepted from the applicant when the first order dated 09.07.2021 was issued. This appears to be the starting point for bickering between applicant and respondents. It has also been brought to our notice that an enquiry alleging negligence on part of the applicant was instituted through a committee in BIMS. This reason also mentioned in endorsement dated 05.10.2021 by respondent Nos. 4 and 6 a copy of which has been sent to respondent Nos. 1 and 2.
13. We are aware that Tribunals have limited power to interfere in normal transfer orders. Our attention was drawn by learned Counsel for respondent No.4 to the judgments in the case of Rajendra Singh and Others V/S State of UP (2009) 15SCC 178 where in the Hon'ble Apex Court has held that transfer being an incidence of service no person can claim that he or she be posted to a particular place unless transfer is contrary to the statute
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NC: 2023:KHC-D:8004-DB WP No. 104220 of 2023 or malafide. In case of State of UP V/S Gobardhan Lal (2004) 11 SCC 402 the Hon'ble Apex Court has categorically laid down the principles that a Government servant has no vested right to remain posted to a place. No Government can function if the Government servant insists that once appointed or posted in a particular place or position he should continue in such place or position as long as he desires. Similarly, in the case of Shilpi Bose V/S State of Bihar (1990) SCC 659, the Hon'ble Apex Court has held that courts should not interfere with the transfer order which is made in public interest and for administrative reasons unless the transfer order is made in violation of any mandatory statutory rule or on ground of malafide.
14. Relying on the above judgments and facts and circumstances of the case, we hold the view that the applicant has not made out a strong case for our interference. The applicant has failed to make out a case as to how the transfer order is unfair.
15. Accordingly, this Tribunal holds the view that as far as prayer for consideration of setting aside the impugned transfer order dated 22.08.2022 as (Turtu Chikitsa Vaidyadhikari) Emergency medical officer at Taluka Hospital Khanapur at Annexure-A1 is concerned the prayer is dismissed for being devoid of merit. Regarding second prayer for disbursement of salary is concerned the same is directed to be disbursed immediately by respondent Nos. 1 and 2 from 09.07.2021 till 22.08.2022 as on duty and period be treated as compulsory waiting period. Regarding salary for the period from 22.08.2022 till joining of the post as per expunged order can be expeditiously decided by respondent Nos. 1 and 2 as per Rule.
16. With this direction the application is disposed of."
8. A perusal of the impugned order passed by the Tribunal clearly indicates that apart from the fact that the Tribunal has correctly and properly appreciated the entire
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NC: 2023:KHC-D:8004-DB WP No. 104220 of 2023 material on record, it has also taken into account the earlier round of litigation between the parties including the orders/interim orders passed by this Court in WP No.101136/2022, which clearly indicates that the impugned transfer order dated 22.08.2022 was not only passed during the pendency of the said petition but also at the instance of this Court for the purpose of addressing the grievance of the petitioner, who had voluntarily accepted the same and was confirmed by this Court in its order dated 2.9.2022. It is therefore clear that instant application filed by the petitioner/applicant subsequently on 3.11.2022 before the Tribunal seeking to challenge the transfer order that was passed at the instance of this Court and voluntarily accepted by the petitioner, who submitted that the writ petition would not survive for consideration resulting in its disposal on 22.08.2022 was devoid of merit and the Tribunal has correctly rejected the same by passing the impugned order, which does not warrant interference by this Court in the present writ
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NC: 2023:KHC-D:8004-DB WP No. 104220 of 2023 petition. Under these circumstances, we do not find any merit in the petition and same is hereby dismissed.
Pending applications, if any, do not survive for consideration and accordingly, they are disposed of.
Sd/-
JUDGE Sd/-
JUDGE JTR List No.: 1 Sl No.: 19