Uttarakhand High Court
Dr. Manish Pant vs State Of Uttarakhand And Others on 3 March, 2020
Author: R.C. Khulbe
Bench: Ramesh Ranganathan, R.C. Khulbe
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/B) No. 33 of 2020
Dr. Manish Pant ...Petitioner
Vs.
State of Uttarakhand and others ...Respondents
Mr. Amish Tewari, learned counsel for the petitioner.
Mr. B.P.S. Mer, learned Brief Holder for the State of Uttarakhand-respondents.
Dated: 02nd March, 2020
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble R.C. Khulbe, J.
Ramesh Ranganathan, C.J. (Oral) Heard Mr. Amish Tewari, learned counsel for the petitioner and Mr. B.P.S Mer, learned Brief Holder for the State of Uttarakhand and, with their consent, the Writ Petition is disposed of at the stage of admission.
2. The petitioner has invoked the jurisdiction of this Court seeking a writ of mandamus directing the respondents to relieve him from the post of Pediatrician (Medical Officer) at District Hospital Bageshwar to enable him to join at the place to which he was transferred ie the Mahila Hospital, Almora.
3. Facts, to the limited extent necessary, are that the petitioner was initially appointed as a Medical Officer on 29.09.2010 at the Primary Health Centre, Kapkot, District Bageshwar. After having worked there for six years, the petitioner was appointed at the Government Hospital, Bageshwar, wherein he continues to serve even as on date. The Uttarakhand Annual Transfer for Public Servants Act, 2017, makes provision for periodic transfer of government servants. In terms thereof, the petitioner was also transferred from the District Hospital, Bageshwar to the Mahila Hospital, Almora by proceedings dated 24.09.2018. Despite his transfer, the petitioner was not relieved 2 since the order of transfer dated 24.09.2018 stipulated that the petitioner would be relieved only when a reliever came in his place.
4. The petitioner has invoked the jurisdiction of this Court contending that, while several other doctors are being transferred in a routine manner, these restrictions have been placed only on one or two Medical Officers, including himself; he made a representation, on 20.05.2019, to the Director General, Medical Health and Family Welfare informing him that his father is a cancer patient, and both his parents are senior citizens; a Pediatrician (Child Specialist) is available at the Community Health Centre in Bageshwar whose services can be utilized at the District Hospital, Bageshwar; and, without even considering his representation, the respondents are continuing him at the District Hospital, Bageshwar on the ground that no other doctor has been relieved for being posted, in the place of the petitioner, at the District Hospital at Bageshwar.
5. When the matter came up earlier, we had granted time to the learned Brief Holder for the State Government to obtain instructions. Today Mr. B.P.S. Mer, learned Brief Holder for the State Government, would place before us a copy of the order passed by a Division Bench of this Court, in Writ Petition (PIL) No. 44 of 2016 dated 11.12.2017, in support of his submission that it is in the light of the directions issued by the Division Bench in the aforesaid judgment, and the acute shortage of specialists, that the petitioner has been retained at the District Hospital, Bageshwar despite his transfer to the District Hospital, Almora.
6. In its order in Writ Petition (PIL) No. 44 of 2016 dated 11.12.2017, the Division Bench observed that, out of the 1226 sanctioned posts of Specialists, only 389 Specialists were available; the remaining 837 posts were still lying vacant; Article 21 of the Constitution of India embraces the right to health to be provided by the State Government; denial of trauma centers and blood-banks in the entire State amounts to denial of life; access to life by proper medical 3 care could not be obstructed or prevented by the State; and the State Government had stated that 712 posts of specialist doctors were advertised, and the selection process had commenced on 29.11.2017. The Division Bench made it clear, by way of abundant caution, that no specialist doctors shall be transferred, from the Trauma Center, Bageshwar, by the State Government, without completing their tenure.
7. Since reliance is placed on the aforesaid judgment by Mr. B.P.S. Mer, learned Brief Holder, to justify the action of the State Government in not relieving the petitioner from the District Government Hospital, Bageshwar to the Mahila Hospital, Almora, it is necessary to note the restrictions placed by the Division Bench on transfer of Specialist Doctors.
8. All that the Division Bench has held, in its judgment in Writ Petition (PIL) No. 44 of 2016 dated 11.12.2017, is that no Specialist Doctor shall be transferred from the Trauma Center, Bageshwar, by the State Government, without completing their tenure. It defies reason that the respondents would seek to place reliance on this judgment to justify retention of the petitioner, despite his being transferred by order dated 24.09.2018 which was more than nine months after the Division Bench passed its order on 11.12.2017. The prohibition from transfer is with respect to Specialist Doctors working at the Trauma Center at Bageshwar and not at the Government Hospital at Bageshwar.
9. The petitioner claims that the District Government Hospital at Bageshwar is not a Trauma Center. In any event, the directions issued by the Division Bench are not to transfer Specialist Doctors before completion of their tenure. The petitioner has been working in District Bageshwar from 2010 onwards, and at the District Government Hospital, Bageshwar from 2016. Since transfers are, ordinarily, effected on completion of a tenure of 3-4 years, even if the tenure is computed, from when the petitioner joined duty at the District Government Hospital, Bageshwar, he has completed around four 4 years' service thereat till date, which would exceed the prescribed tenure, and bring him outside the ambit of the judgment of the Division Bench in Writ Petition (PIL) No. 44 of 2016 dated 11.12.2017. Further, the petitioner claims that his father is suffering from cancer and his parents are senior citizens, and he is entitled to be transferred, under the 2017 Act, even on this score.
10. It is not as if the petitioner is the only Pediatrician (Child Specialist) in the entire State, and is required to be retained despite completion of his tenure at the District Government Hospital, Bageshwar. It is not known whether there are other Pediatricians (Child Specialists), working in other districts, who are eligible for being transferred on completion of their tenure, who can be posted at Bageshwar after the petitioner is relieved from his duties thereat. If, as is now contended before us, the petitioner is not being relieved because of the restrictions placed on the State Government by the judgment of the Division Bench of this Court, in Writ Petition (PIL) No. 44 of 2016 dated 11.12.2017, it does not stand to reason that the respondents should effect transfer of the petitioner on 24.09.2018 more than nine months after the judgment of the Division Bench, despite being aware of the conditions imposed by the Division Bench in its order dated 11.12.2017.
11. While we find considerable force in the submission of Mr. Amish Tewari, learned counsel for the petitioner, that failure to relieve the petitioner from the District Government Hospital, Bageshwar, to join duty at the Mahila Hospital, Almora, does appear irrational and arbitrary, it would be inappropriate for us to express any conclusive opinion thereupon, since the petitioner's representation dated 20.05.2019 is still pending consideration before the second respondent.
12. Suffice it, instead of keeping this Writ Petition pending on the file of this Court, to direct the second respondent to consider the petitioner's representation in accordance with law, pass a reasoned order thereupon, and communicate the same to the petitioner within 5 one month from today. Needless to state that, in case the second respondent is satisfied that the petitioner should be relieved from his duties at the District Government Hospital, Bageshwar, he shall issue necessary posting orders in this regard within two weeks thereafter.
13. The Writ Petition is, accordingly, disposed of. No costs.
14. Mr. B.P.S. Mer, learned Brief Holder for the State Government, is present in Court and undertakes to inform the second respondent of his obligations under this order.
15. Let a certified copy of this order be issued to all the parties, on payment of the prescribed charges, by 04.03.2020.
(R.C. Khulbe, J.) (Ramesh Ranganathan, C.J.)
02.03.2020 02.03.2020
Rahul