Gauhati High Court
Birabrata Acharjee vs The State Of Assam And 4 Ors on 19 November, 2019
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/8
GAHC010112992015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 148/2015
1:BIRABRATA ACHARJEE
S/O LT. BIMALENDU ACHARJEE, R/O SUBHASHNAGAR, W/NO.16, P.O., P.S.
and DIST- KARIMGANJ, ASSAM
VERSUS
1:THE STATE OF ASSAM AND 4 ORS
REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM,
HEALTH and F.W.A DEPTT., DISPUR, GHY-6
2:THE DIRECTOR OF HEALTH SERVICES
ASSAM
HENGRABARI
GHY-36
3:THE JT. DIRECTOR OF HEALTH SERVICES MALARIA
ASSAM
O/O THE DIRECTOR OF HEALTH SERVICES
ASSAM
HENGRABARI
GHY-36
4:THE JT. DIRECTOR OF HEALTH SERVICES
KARIMGANJ
P.O.
P.S. and DIST- KARIMGANJ
ASSAM
PIN-788710
5:THE DISTRICT MALARIA OFFICER
KARIMGANJ
P.O.
P.S. and DIST- KARIMGANJ
ASSAM
Page No.# 2/8
PIN-78871
:: BEFORE ::
HON'BLE MR. JUSTICE KALYAN RAI SURANA
For the Petitioner :Dr. B. Ahmed, Mr. N. Haque, Mr. Rajarshee De,
:Mr. K. Uddin, Ms. M. Borah, Ms. J. Chetry,
:Mr. F.A. Hassan, Mr. A.B.T. Haque, Ms. M. Bora,
:Mr. A.U. Ahmed, Ms. A. Gogoi, Ms. L. Baruah,
:Mr. R. De, Advocate.
For the Respondents :Ms. A. Verma, Advocate.
:Mr. B. Gogoi, (SC, Health).
Date of Hearing :01.08.2019
Date of judgment :19.11.2019
:: JUDGMENT & ORDER::
(CAV)
Heard Mr. R. De, learned counsel for the petitioner and also Mr. B. Gogoi, learned standing counsel for the Health Department of the State.
2. By this writ petition filed under Article 226 of the Constitution of India for a direction to the respondents to convert/ adjust the service of the petitioner as Surveillance Worker to the post of Lower Division Assistant (LDA) in the Office of the District Malaria Officer, Karimganj (respondent No.5) where he is performing his duties as LDA w.e.f. 04.11.2013, as per order dated 23.10.2013 passed by the Director of Health Services, Assam (respondent No.2); and for directing the respondents No.2 to 5 to continue to allow the petitioner to perform his duty as LDA in the office of respondent No.5 till his adjustment or regularization in the said post; and for quashing letter date 13.08.2013, 28.04.2014 and 13.06.2014, by which the Govt. had declined for conversion of the post of Surveillance Worker, held by the petitioner to the post of LDA.
3. The case projected by the learned counsel for the petitioner that by letter dated 11.04.2008, the Director of Health Services, Assam appointed the petitioner as Surveillance Worker under National Vector Borne Decease Control Programme (NVBDCP for Page No.# 3/8 short), Assam and placed under the disposal of the Joint Director of Health Services, Karimganj. In course of time, the petitioner developed serious spinal cord ailment and, as such, the petitioner had submitted his representation before the Joint Director of Health Services (Malaria), Assam (respondent No.3) for considering his posting/ adjustment as an LDA in the office of the respondent No.5, where such post was lying vacant. The Director of Health Services, Assam by a letter under memo dated 07.01.2012, forwarded a proposal for conversion of services from the post of Surveillance Worker to the post of Junior Assistant and a request was also made for approval of transfer of the petitioner from the post of Surveillance Worker to the vacant post of Junior Assistant. Accordingly, the Deputy Secretary to the Govt. of Assam, H&FW (A) Department by a letter dated 03.03.2012, requested the Principal-cum-Chief Superintendent, GMCH for constitution of a Medical Board to examine the petitioner and to submit a report and that it was disclosed that on the basis of the said report, the Govt. shall take a decision on the petition submitted by the petitioner for conversion of his services from Surveillance Worker (field duty) to Junior Assistant on medical ground. Accordingly, as per the medical opinion submitted by letter dated 13.03.2012, the petitioner was provisionally diagnosed as a case of chronic prolapse of intervertebral disc (L4- L5 level with hypeuricemia). However, on the basis of Govt. W.T. Message dated 09.05.2012, enclosed by the respondent No.4, by an order dated 14.05.2012, direction was issued to replace the service of the petitioner at the Office of the Sub-Divisional Medical and Health Officer, Girishganj PHC to perform surveillance related office works at the PHC for a period of 6 (six) months w.e.f. the date of issue of the order.
4. The learned counsel for the petitioner has submitted that the petitioner had joined the said post under protest because his place of posting was far from the place of residence, long travelling to attend his duties and to return back was not conducive to his well being in view of the nature of decease with which the petitioner was suffering. Accordingly, the petitioner had submitted another petition for conversion of his service from Surveillance Worker to Junior Assistant in the establishment of respondent No.5 on medical ground. However, the Joint Secretary to the Govt. of Assam, H&FW (A) Department by letter dated 15.06.2012 informed the respondent No.4 that prayer for conversion was not agreeable. However, the petitioner was allowed to work for 6 (six) months as Surveillance Page No.# 4/8 Worker at some PHCs or other Health Institutions. Accordingly, pursuant to arrangement made as per order No.2075 dated 14.05.2012 from respondent No.5, by an order dated 15.11.2012, the service of the petitioner was withdrawn from daily Malaria related OPD duty of Girishganj PHC on 15.11.2012 and he was directed to perform normal duty at his respective area HQ: Fakira Bazar, Section B-6 under Girishganj PHC.
5. It is submitted that the aggrieved petitioner approached this Court by filing WP(C) 1941/2013 and this Court by an order dated 13.06.2013 disposed of the writ petition by directing the Commissioner & Secretary to the Govt. of Assam, H&FW Department (respondent No.1) to take a final decision in the matter within a period of 1 (one) month. Accordingly, by an order dated 13.08.2013, the Deputy Secretary to the Govt. of Assam, H&FW (A) Department regretted the inability to the conversion from the post of Surveillance Worker to Junior Assistant and the said letter was issued with the approval of Personnel (B) Department.
6. It is submitted that thereafter the respondent No.2 by an order dated 23.10.2013 placed the petitioner who was working as Surveillance Worker at Girishganj PHC was placed as LDA under the respondent No.5 against the vacant post of LDA. Consequential orders were passed on 01.11.2013 and accordingly, the petitioner joined the said post. However, the respondent No.4 by his letter dated 12.02.2014 sought clarification from the respondent No.1 regarding placement of the petitioner as LDA because the said order of posting by the respondent No.2 was contrary to the orders dated 15.06.2012 and 13.08.2013. Accordingly, the Deputy Secretary to the Govt. of Assam, H&FW (A) Department issued a direction to the respondent No.2 to cancel these orders and directed that disciplinary action be initiated against the erring officers for such illegal act. It is submitted that the pursuance of the Director contained in the letter dated 28.04.2014, the respondent No.2 cancelled his order dated 23.10.2013. Accordingly, by an order under memo dated 23.06.2014, the respondent No.4 directed the petitioner to join under the disposal of the SDM&HO, Ramkrishna Nagar PHC, Section: Q-70, HQ Rongpur with immediate effect and to handover the office files and records to the UDA of respondent No.5. It is submitted that by an order under memo dated 27.06.2014, the petitioner, working as Surveillance Worker, Girishganj PHC Page No.# 5/8 under the establishment of respondent No.4 was allowed to render his service as LDA under the disposal of respondent No.5 and consequential order was passed by the respondent No.4 on 07.07.2014. However, in the meanwhile by a letter under memo dated 30.06.2014, the Deputy Secretary to the Govt. of Assam H&FW (A) Department wrote to the respondent No.2 i.e. Director of Health Services, Assam to immediately submit action taken report in connection with the department's letter dated 28.04.2014. Thereafter, by an order under memo dated 15.11.2014, the conversion order for posting the petitioner from the post of Surveillance Worker to Junior Assistant to the respondent No.5 was cancelled.
7. The learned counsel for the petitioner has referred to an appeal dated 20.09.2014 submitted by the petitioner to the Principal Secretary to the Govt. of Assam, H&FW Department through registered post, wherein it is admitted that in the past several Surveillance Workers were converted to the post of LDA in the establishment of respondent No.5 and 8 (eight) such conversions were referred to. It is also submitted that by an order dated 31.07.2010, the Joint Director of Health Services (M)-cum-State Programme Officer, NVBDCP, Assam had designated one Surveillance Worker attached to the office of respondent No.5 as Store Keeper against the vacant post with a further direction that the seniority would be counted from the date of joining in the said post. The learned counsel for the petitioner has heavily relied on RTI reply dated 18.10.2012 provided by the Joint Director of Health Services (M)-cum-State Programme Officer, NVBDCP, Assam, disclosing the names of seven incumbents working as Store Keeper and LDA from the post of Surveillance Worker as per order issued from their office. Accordingly, by referring to the affidavit- in- reply and additional affidavit filed by the petitioner, it is submitted that while there was several instances of conversion of the post of several Surveillance Workers to the post of LDA/ Junior Assistant, but despite the Govt. having information that the petitioner was suffering from spinal cord disorder, the petitioner is being deprived of similar benefits of conversion of post, which was already granted to others.
8. Per contra, the learned standing counsel for the respondents has referred to the affidavit- in- opposition filed by the respondent No.2 and it is submitted that the initial appointment of the petitioner was as Surveillance Worker and not as an LDA. It is submitted Page No.# 6/8 that for selection of LDA, a different recruitment process. It is submitted that there are no provisions in the concerned service rules in force, applicable for the petitioner, permitting conversion of Surveillance Worker to LDA/ Junior Assistant and, as such, the Government had expressed its inability to agree to the proposal for such conversion. It is further submitted that the Directorate of Health Services, Assam is bound to follow the directives issued by the Government in the Health Department and accordingly, pursuant to the directives contained in the order dated 28.04.2014 issued by the Deputy Secretary to the Govt. of Assam, H&FW (A) Department, the respondent No.2 cancelled his order dated 23.10.2013 towards conversion of the post of Surveillance Worker to Junior Assistant in respect of the petitioner.
9. The learned standing counsel for the respondents has submitted that the petitioner has referred to documents showing that some post of Surveillance Workers had been converted to LDA/ Junior Assistant and Store-keeper. In the said regard, it is submitted that one wrong committed by an official in the past cannot be a ground to commit another wrong. It is also submitted that the orders by which the authorities are alleged to have converted the post of Surveillance Workers to other posts in the establishment of Directorate of Health & Family Welfare are not the subject matter of this present writ petition and, as such, he has not been instructed on those actions.
10. Therefore, the only point of determination in this writ petition is whether a writ in the nature of mandamus can be issued for directing the authorities to convert the post of Surveillance Worker (i.e. field worker), which is held by the petitioner to the post of LDA/ Junior Assistant or Store-keeper, etc. (i.e. office work).
11. In this regard, there is no doubt that while few other similarly situated Surveillance Workers have been converted/ adjusted to the post of LDA/ Junior Assistant, or Store-keeper, but the authorities have refused to accommodate the petitioner by conversion of his post from Surveillance Worker to the post of LDA/ Junior Assistant, or Store-keeper, etc. The Court finds force in the submissions made by the learned standing counsel for the Health Department that one wrong in the post cannot be a ground to commit another wrong. Moreover, as the legality or sustainability of those conversions are not challenged in this writ Page No.# 7/8 petition, the Court has no material from which it can be gathered why such conversions were permitted by the Health Department of the Government of Assam. It is also seen that the petitioner has projected that he is suffering from spinal cord ailments which has been diagnosed by the Medical Board constituted by the competent authority.
12. In this case, the respondent No.2 had taken a stand that the initial appointment of the petitioner was as Surveillance Worker and not as an LDA and that there is a different recruitment process for selection and appointment of LDA. Moreover, in the absence of any provisions in the service rules applicable for the petitioner, it is not permissible for conversion of Surveillance Worker to LDA/ Junior Assistant and, as such, the Government had expressed its inability to agree to the proposal for such conversion. There appears to be force in such submissions because if a particular post has fallen vacant, the Government undertakes recruitment drive to fill up that post. Once a person joins that post, he is expected to serve in such post as per the protocol being followed in the particular service rules in force. There is no denial that one may have difficulties in serving in a particular office, but it cannot be expected that the Government is bound to entertain each and every request made by employees to accommodate him or her so as to enable such employee to tide over his/ her difficulties. Such a policy may be counter-productive for the Government. However, in the present case in hand, there is no Act, Rules or administrative orders in force by which one can claim conversion of the post of Surveillance Worker to LDA/ Junior Assistant, or Store- keeper. Therefore, the petitioner is found to have no substantive right to get the post of Surveillance Worker, which he is holding to be converted to the post of LDA/ Junior Assistant, or Store-keeper.
13. In the case of Shri Mengutuo Kense & Ors. Vs. State of Nagaland & Ors., (2017) 0 Supreme(Gau) 379: 2018 STPL 8331 (Gau) , this Court has held that it is Government who creates post as per its needs and it also submitted that post and services are created to serve public interest and not to serve individual interest or interests of a group of people. In the present case in hand, no right or rights of the petitioner under Articles 14 and 16 of the Constitution of India has been violated by the refusal of the respondents to convert the post of Surveillance Worker, held by the petitioner to LDA/ Junior Assistant.
Page No.# 8/8 Resultantly, if no legal or constitutional right of the petitioner has been violated, he is not entitled to a writ of mandamus in terms of prayers made in this writ petition.
14. Viewed with the said angle, there appears to be no merit in the claim made by the petitioner and, as such, the petitioner is not entitled to any relief in this writ petition and, as such, this writ petition stands dismissed. However, leaving the parties to bear their own cost.
15. However, before parting with the records, having noticed that the officials under the Health & Family Welfare Department and under the Directorate of Health Services had converted the posts of several Surveillance Workers to LDA/ Junior Assistant or Store- keeper and that the learned standing counsel for the petitioner had submitted that one wrong in the past cannot be a ground to commit another wrong. Moreover, in their affidavit- in- opposition, the respondent No.2 had cited that there are no rules permitting such conversion. Therefore, it is made clear that if in future, any such conversion by the respondents comes to the notice of the petitioner, if so advised, he shall have the liberty to approach this Court again to ventilate his grievance and claim to be treated equally and/or at par.
JUDGE Comparing Assistant