Madras High Court
Dr.S.M.Thirunavukkarasu vs The Director Of Medical And on 1 October, 2010
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01/10/2010
CORAM
THE HONOURABLE MR. JUSTICE K.CHANDRU
Writ Petition (MD) No.2659 of 2008
and
M.P.(MD) No.1 of 2008
Dr.S.M.Thirunavukkarasu ... Petitioner
vs.
1.The Director of Medical and
Rural Health Services,
Chennai - 600 006.
2.The Joint Director of Medical,
Rural Health Services and
Family Welfare,
Theni at Periyakulam,
Theni District. ... Respondents
Writ petition has been filed under Article 226 of the Constitution
of India to issue a writ of Certiorarified Mandamus, to call for the records
relating to (i) Proceedings in Na.Ka.No.80520/Ni.Pi.4/3/2005 dated 23.11.2006,
and (ii) Proceedings Mu.Mu.No.80520/Ni.Pi4/3/2005 dated 23.11.2006, passed by
the first respondent herein and quash the same and consequently direct the
respondents herein to treat the leave from 28.06.2005 to 25.11.2005 as duty
period.
!For petitioner ... Mr.A.Thirumurthy
^For respondent s ... Mr.R.Janakiramulu, Spl.G.P.
:ORDER
The petitioner has come forward with the present writ petition to challenge the order passed by the respondents dated 23.11.2006. By the impugned order, the petitioner was informed that during the transfer period from 28.6.2005 to 25.11.2005, he had applied for leave and also availed leave. Since during the transfer period, he had availed leave, his request made pursuant to the application dated 16.12.2005 to treat the leave as duty period cannot be considered. It was also stated that the leave period availed by him were not certified by the Medical Board for Theni district. He will be only allowed leave to which he is eligible for.
2.The brief facts leading to the case are as follows:
a) The petitioner was working as an Assistant Surgeon in the Government Headquarters Hospital at Periakulam, Theni District. He was transferred on administrative grounds to Government Hospital at Colachel, Kanyakumari District on 16.06.2005 and subsequently the said order was modified by the respondents on 23.06.2005. Therefore the petitioner filed a writ petition before this Court in W.P.No.6242 of 2005, seeking for a direction to forbear the respondents from transferring the petitioner from the Government Headquarters Hospital, Periyakulam. Pending prayer made by the petitioner, this Court granted interim order in W.P.M.P.No.6812 of 2005 wherein, this court has observed that the post at Government Headquarters Hospital, Periyakulam if not filled up, he may be permitted to continue there until further orders.
b) In view of the said order, the respondents passed an order dated 25.11.2005, cancelling the earlier posting order dated 16.6.2005 and reposting him to Government Headquarters Hospital at periakulam. However, subsequent to the reposting order, the counsel for the petitioner made the following endorsement in W.P.(MD) No.6242 of 2005:
"I may be permitted to withdraw the writ petition in W.P.No.6242/2005 on the ground that the petitioner is now transferred from Periakulam to Theni."
Pursuant to the said endorsement, this court, by an order dated 28.09.2006 dismissed the said writ petition by observing as follows:
"When the writ petition came up for hearing, the learned counsel appearing for the petitioner sought permission of this Court to withdraw the Writ Petition. He has also made an endorsement to that. In view of the same, the Writ Petition is dismissed as withdrawn. Consequently, the connected W.P.M.P. & W.V.M.P.No.447 of 2005 are also dismissed. No costs."
Therefore, there was no adjudication on the merits of the petitioner's transfer order. Notwithstanding the same, the petitioner sent a representation stating that the period from 28.6.2005 to 25.11.2005 is to be treated as duty. As stated above, the respondents have stated that during the interregnum period, he has availed leave and hence the question of treating the said period as duty period does not arise. Asking the same, the present writ petition came to be filed.
3.Notice was ordered by this Court on 24.03.2008. After getting notice, the 1st respondent Director of Medical and Rural Health Services, Chennai has filed a Counter affidavit dated 21.04.2008 together with the supporting documents. In the Counter affidavit in paragraph No.7, it was stated that the question of treating his leave as duty period will not arise as the writ petition was pending. Even otherwise, it was stated that the petitioner came to be transferred in view of a complaint received against him for violation of the provisions of Sections 6A and 6B of the Prenatal Diagnostic Techniques (prohibition and selective sex) Act, 1994, wherein, he conducted a test for the purpose of determining the sex identification of the foetus, which is also a criminal offence and a charge under Rule 17 (a) has also been framed against him.
4.In paragraph Nos.5 to 7 of the counter affidavit, it was averred as follows:
"5.It is submitted that the petitioner on transfer to Government Hospital, Colachel vide Ref.No.55387/E1/1/2005, dated 16.06.2005, dated 16.06.2005 which was served to the petitioner on 27.06.2005 through 2nd respondent has sent a telegram dated 28.06.2005 for 10 days Medical leave. He has me the Director of Medical and Rural Health Services for cancellation of his postings. Due to his serious offence and as per the instructions of the Government, his request was denied. Again, he has sent a telegram dated 08.07.2005 for another 10 days Medical leave. In the Meantime he has filed a case in W.P.(MD) No.6242/05 challenging the transfer order and an interim order was issued in W.P.M.P.(MD) No.6812/2005 on 15.07.2005 that the petitioner may be allowed to continue in Government Head Quarters Hospital if the post is not filled up until further orders of this case.
6.Regarding Para (6) It is submit to state that 17(b) charges were framed against the petitioner on 26.07.2005 and it was served to him on 1.8.2005. Since the petitioner has applied for Medical leave. He was directed to appear before Medical Board on 16.8.2005 and the Medical Board has not recommended his Medical leave on Medical grounds and the leave spells has not been ratified.
7. Regarding Para 7, it is submit to state that to obey the contempt petition on 25.11.2005 the petitioner was allowed to continue in Government Head Quarters Hospital, Periyakulam with effect from 26.11.2005. The petitioner has applied to treat the leave period as Duty Period. Since a case in Honourable High Court Madurai Bench is still pending for final orders, the request of the petitioner can not be considered. However his request has been forwarded to the Government vide Ref.No.29952/E4/3/2007 Dated 28.4.2007 and it is still under consideration of the Government on Merit of the case."
5.In the light of the stand taken by the 1st respondent, the short question arises whether the petitioner is eligible for treating the interregnum period as duty period?. If a person is aggrieved by a transfer order and challenged the same and if there is an interim order in his favor and by virtue of the interim order, he got a posting, that by itself cannot be a ground for the petitioner to contend that the transfer order was contrary to the law and therefore, any action done pursuant to the such order is an illegal order. Such contention cannot be accepted. Any interim order granted is always subject to the result of the main writ petition. Only in cases, where this court holds that the transfer order is malafide or illegal and when the order is set aside on merits and if this Court grants appropriate relief and then only the period for which, whether any one served or not, can be treated as duty for all purposes. In case of an exparte interim order, which had been given effect to by the respondent, the petitioner does not get any advantage over it. On the other hand, having challenged the order of transfer, the petitioner's then counsel having made endorsement in the Court bundle and withdrew the writ petition and there being no liberty to continue the cause of action with reference to the wages, the present relief claimed is not maintainable.
6.The question whether transfer order stayed by Court whereby an interim order alone without adjudication of the main case entitled any relief came to be considered by this Court in K.Pandi and Others Vs State, rep. By the Secretary to Government, Finance Department, Chennai 600 009 and Others reported in (2009) 7 M.L.J. 1191. After setting out all the previous cases dealt with by this Court and the Supreme Court, this Court held that only in cases where the transfer order is set aside on merits, the question of treating the period as compulsory wait or as duty period will arise. In the case of transfer, without any final adjudication, no advantage can be taken on the said interim order. Further, in this case, the petitioner himself had applied for leave to which he is eligible for that period.
7.Hence, the impugned order does not suffer from any irregularity and the Writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.
arul To
1.The Director of Medical and Rural Health Services, Chennai - 600 006.
2.The Joint Director of Medical, Rural Health Services and Family Welfare, Theni at Periyakulam, Theni District.