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Dr. Prem Beharilal Saksena Vs. Director of Medical and Health Services, Lucknow and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 415 of 1958
Judge
Reported inAIR1959All629
ActsConstitution of India - Article 311; Civil Services (Classification, Control and Appeal) Rules - Rules 49A, 52 and 52A
AppellantDr. Prem Beharilal Saksena
RespondentDirector of Medical and Health Services, Lucknow and anr.
Appellant AdvocateK.C. Saksena and ;A.P. Pandey, Advs.
Respondent AdvocateAli Raza Osmani, Addl. Junior Standing Counsel
DispositionPetition allowed
Excerpt:
.....- article 311 of constitution of india - rule 15 of the fundamental rules gives power to the state government to transfer a government servant from one post to another - where government servant has been appointed to a specific post and that post is in its very nature - rule 15 does not apply to the petitioner - rule 15 is unable to sustain the transfer order which must under circumstances be held in excess of powers - without jurisdiction. (ii) service - suspension - two types - by way of punishment and interim step pending enquiry into the conduct of the government servant concerned - rules 49-a and 52-(a) of civil services (classification, control and appeal) rules - appointment by governor and no delegation in favour of additional director, medical services - director not being..........by the public service commission for the post at kanpur and recommended accordingly to the state government. subsequent to this recommendation the government made the appointment of the petitioner.there are two such orders, one issued in november 1950 in which there were certain terms which it seems were not acceptable to the petitioner. the latter therefore represented against them to the state government which modified the earlier terms and issued a fresh appointment letter on march 31, 1951. there was, it appears, some further difficulty about the terms which were ultimately modified and communicated to the petitioner on september 1, 1951 by letter, annexure 3.so far as the appointment of the petitioner went, it took place under the order of the governor, copy whereof is.....
Judgment:
ORDER

J.K. Tandon, J.

1. The petitioner in this case is one Dr. Prem Behari Lal. The relevant facts minus unnecessary details are that he was appointed by theGovernment on the post of Anaesthetist at the State hospitals at Kanpur which are Ursla Horsman Memorial Hospital and Sri Lajpat Rai Hospital. This was done in 1951 on a scale of 200-10-250 EB 10-310 EB 14-450. Prior to his appointment on this post the Public Service Commission was in the usual course asked to make the selection.

The notification issued by the Public Service Commission inviting applications from prospective candidates has been filed as Anncxure 4 to the main affidavit of the petitioner. In this document various matters which it was necessary to notify to the candidates were also mentioned but the one which is directly relevant here was as follows :

'Each Anaesthetist will be under the direct control of the Civil Surgeon of the District concerned and will administer anaesthetics to the patients at the Government hospitals in the city under the directions of the Civil Surgeon. He will not be attached to any particular hospital but will serve all the State hospitals in the city and will aiso train medical officers in the art of administrating anaesthetics.'

Here it may be mentioned that the advertisement issued by the Public Service Commission was for two posts of Anaesthetists, one each for Allahabad and Kanpur. The petitioner was ultimately selected by the Public Service Commission for the post at Kanpur and recommended accordingly to the State Government. Subsequent to this recommendation the Government made the appointment of the petitioner.

There are two such orders, one issued in November 1950 in which there were certain terms which it seems were not acceptable to the petitioner. The latter therefore represented against them to the State Government which modified the earlier terms and issued a fresh appointment letter on March 31, 1951. There was, it appears, some further difficulty about the terms which were ultimately modified and communicated to the petitioner on September 1, 1951 by letter, Annexure 3.

So far as the appointment of the petitioner went, it took place under the order of the Governor, copy whereof is Annexure II. The relevant portion of this order may be reproduced here and is :

'In supersession of this office order No. II F 174 E/4713683, dated 4-12-1950 the Governor has subject to the approval of the Public Service Commission U. P. Allahabad been pleased to appoint Dr. Prem Behari Lal Anaesthetist of the Medical College and Associated Hospitals Lucknow to the post of an Anaesthetist at the State Hospitals at Kanpur in the scale of pay of Rs. 220-10-250 EB 10-310 EB 14-450 subject to the following terms and conditions:'

The order then describes certain conditions including that he shall be on probation for a period of one year. What is significant, however, is that no mention was made in this order about his liability for transfer from the post to which he had been appointed. The petitioner continued to serve on this post thereafter and was ultimately confirmed with effect from 10-9-1955.

In the confirmation order sent to him it was once again stated that he had been confirmed as an Anaesthetist Ursla Horsman Memorial Hospital Kanpur. It further appeared that after he had been appointed the petitioner represented to the State Government for declaring his post to belong to one or the other State Medical Services.

The reply that he got, however, was that it was an ex-cadre post meaning thereby that he could not be placed on the cadre of one or the other services. In October 1957 he was served with an order Annexure 9 transferring him from his the then post at Kanpur to S.P. Gupta Hospital at Varanasi. This was issued under the signatures of the Additional Director of Medical Services.

On receipt of the above order the petitioner represented to the Director that inasmuch as his appointment was to a specified post, namely, as Anaesthetist to the Ursla Horsman Memorial Hospital at Kanpur, he was not liable to transfer. But while maintaining this position he also offered that in case he was placed on the cadre of one or the other services he had no objection to moving to Varanasi :

The Director of Medical Services, however, insisted that he should make over charge of his duties at Kanpur and proceed to Varanasi. There were, it appears, one or more further representations. Ultimately as the petitioner was not willing to proceed to Varanasi the Director suspended him by his letter dated 28-1-1958. The suspension order took effect from the following day.

The reason assigned in this order for suspending the petitioner was that he had displayed the spirit of defiance of the order and disobedience. Since then he is under suspension. The present petition was then filed by him under Article 226 of the Constitution impugning the order dated 19-1-1958, transferring him to Varanasi and the order of suspension communicated to him on 28-1-1958.

The grounds urged are that he was appointed to the particular post at Kanpur and as such was not under terms of his employment liable to transfer. The alleged charge of disobedience is also disputed on the same ground. In the case of the suspension order his contention is that the Director of Medical and Health Services not being his appointing authority had no jurisdiction to make the order.

2. It may be stated at the outset that the Standing Counsel has conceded that the petitioner's appointment was made by the Governor and not by the Director of Medical and Health Services. It also has not been challenged that the suspension order was made in this case by the Director aforesaid. As regards other facts also there does not appear any dispute, inasmuch as the Standing counsel has not pointed out any material on the record to support that the petitioner's appointment was subject to liability for transfer from the post to which he had been appointed.

The terms of appointment do not state any such liability nor has any other document been produced to show that it was thereby incorporated in them or that it existed by virtue of it. Reliance in that behalf has, however, been placed on Rule 15 of the Fundamental Rules which is that the State Government may transfer a Government servant from one post to another.

3. The facts which may, therefore, be taken as not disputed are that the petitioner was appointed by the Governor, that his appointment was lo the post of the Anesthetist attached to the State Hospitals at Kanpur, that he was confirmed in that post ultimately and that the appointment order imposed no express obligation for transfer from that post.

The other facts which too, are not disputed are that the post does not belong to any regular service or other cadre but is an individual post attached to the two hospitals at Kanpur.

4. The circumstances which may be applicable to a Government servant belonging to someservice or cadre cannot therefore, have a direct bearing on the present case which in its very nature will need to be judged in the back-ground of its own terms and conditions. The appointment order to which reference was made earlier does not include any condition or term wherefrom liability for transfer can be inferred. If at all it points to the contrary.

The petitioner was recruited and appointed to a particular post which in its very nature was located at Kanpur and had to be performed at that place. His was not an appointment generally to the post of an anaesthetist but was to the post attached to the two hospitals at that place.

If at all, therefore his term of employment was that he shall serve at Kanpur. It is of no significance in my opinion that these hospitals also like other hospitals happen to be maintained by the State. It may be that the hospital at Varanasi is also an institution run and maintained by the State but the mere fact that the hospital at Varanasi also happens to be a State institution will not import a term in the conditions of petitioner's employment that he can be sent there particularly when his recruitment and appointment was on the particular post at Kanpur.

5. So far, therefore, as the terms of employment, they failed to attach any condition in favour of transfer. The question which will still have to be seen is whether Rule 15 of the Fundamental Rules which gives power to the State Government to transfer a Government servant from one post to another conferred the necessary authority on the Director to order petitioner's transfer from his post at Kanpur.

This rule undoubtedly gives power to the State Government to transfer a Government servant from one post to another. The transfer contemplated by this rule is as its language clearly indicates from one post to another post. Before, therefore, this rule can be availed of, the Government servant must belong to a category of servants which can in accordance with the terms of the employment be sent to another post.

Where a Government servant has been appointed to a specific post and that post is in its very nature such that it can be performed at the particular place only he cannot under this rule be transferred to another post. In such a case the transfer order will in fact run inconsistent with the appointment itself which is not generally to any class of posts but to a specified post only.

I do not, therefore, think that Rule 15, on whichthe respondent has relied, applied to the presentcase. This rule pre-supposes vis-a-vis liability fortransfer the existence of two or more posts onwhich the particular servant can be asked to work.But if a particular servant has been recruited andappointed to a particular past, his employment isfor that post and he cannot consistently with hisappointment be asked to go elsewhere.

6. Apart from Rule 15 the learned Standing Counsel has not referred to any other provision of law or rule nor urged any argument which needed an answer. Rule 15 on which alone he has relied is unable to sustain the transfer order in this case which must under the circumstances be held to be in excess of the powers belonging to the Director in the present case. It is to that extent without jurisdiction also.

7. The suspension order made by the Director is similarly unsustainable. Suspension can be of two types, one by way of punishment and the otheras an interim step pending enquiry into the conduct of the Government servant concerned. There is some difficulty in finding out from the meagre material on record as to which of the two categories the order related in this case. But it may not be necessary to do so.

Rule 49-A of the Civil Services (Classification, Control and Appeal) Rules has made provision for various penalties which may be imposed on a Government servant. Suspension is one of them. Under Rule 52, Clause (a) the penalty of suspension can be imposed by the State Government. Rule 49-A which relates to suspension belonging to the second category gives the power to the appointing authority.

The appointing authority in this case admittedly was the Governor. There is no allegation that the Governor ever delegated this authority in favour of the Director either generally or in the case of the petitioner. The Director therefore, not being the appointing authority, could not make the order of suspension under this rule either.

Therefore, neither Rule 52A nor Rule 49 (A) gave power to the Director to pass the suspension order which could be made by the State Government or the Governor only. The order made by the Director was, therefore, without jurisdiction.

8. It followed from the above discussion thatboth the impugned orders are without jurisdictionand in excess of authority. The suspension orderis accordingly quashed. The respondents are further directed not to give effect to the transfer orderelated 11-10-1957. The petitioner will get his costsfrom the respondents,


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