Dr. Raghwendra Kumar vs The State of Bihar and Others

Mridula Mishra, J.—Heard counsel for the petitioner, counsel appearing for the Respondent Nos. 5 & 6 as well as the counsel appearing for the State. Petitioner is a doctor and member of the Bihar Health Service. His initial prayer in the writ application was for quashing the notification No. - 1/Labour VE.-8-8025/ 2003 LE.-381, Patna dated 24th Decernber, 2003 contained Memo No. 383 dated 24.12.2003 issued by Deputy Secretary, Labour, Employment and Training Department, Government of Bihar, Patna, whereby the services of the petitioner was returned to Health Department. Petitioner''s prayer was that the respondent should be directed to post him on suitable and appropriate post in the Labour, Employment and Training Department, Government of Bihar. By the interim order, dated 30.12.2003 considering the fact that the petitioner''s services has been returned to Health Department, the respondent, Health Department was directed to post the petitioner on some appropriate place. In response to the direction and for compliance of the Hon''ble courts order, the Health Department has already transferred the petitioner to Primary Health Centre, Rajgir by Notification No. 1916(2) dated 10th November, 2004 and the petitioner is already working there. The petitioner had challenged the interim order dated 30.1.2004 in L.P.A. No. 69/04 which was dismissed. The petitioner had challenged only the part of the order by which the petitioner''s service has been returned by the Labour Department to the Health Department. As the interim order passed in the writ application has already been confirmed in L.P.A, and the petitioner has been transferred to Rajgir where he is working. The initial relief prayed for by the petitioner, has become in fructuous and needs no further consideration.

During the pendency of the writ application, petitioner filed I.A. No. 2045/ 2005 challenging the order contained in Notification No. 265 dated 9th September, 2004 issued by under Secretary, Labour, Employment and Training Department, Government of Bihar whereby Respondent Nos. 5 and 6 have been permanently absorbed in cadre of Labour Service (Technical) of Labour Department. This order has been challenged by the petitioner on the ground that the order contained in Annexure-10 has been passed during the pendency of the writ application when the matter was sub-judice. The order has been passed by Semi-Govt. letter and no order of absorption should have been passed on the basis of Semi-Government letter. Further, it has stated that the order of absorption is in violation of Articles 14 & 16 of the Constitution of India as no valid circulation of such absorption on the post was made by the respondent, Labour Department. This restrained the interested persons like petitioner to apply for the post.

Counter affidavit has been filed by the State-respondent No. 3. In the counter-affidavit, it has been stated that the Com-missioner-cum-Secretary, Labour, Employment and Training, Government of Bihar, vide letter No. 70 dated 4.4.2003 wrote a letter to Health Department for sending names of two doctors, for posting as Factory Inspector (Medical). One post was in general category and other was reserved for scheduled caste category. Three names for each category was asked to be sent with their service records, character roll of past 5 years, having adequate knowledge of industrial health. Petitioner''s name was not sent in proper manner, in which nomination was asked by Labour Department. This was the reason for returning petitioner''s services by the Labour Department, to his parent department, i.e. Health Department. Name''s of Respondents No. 5 & 6 were sent to E.S.I. Scheme under the Labour Department from the Health Department in September, 1991 and in 1990 respectively. They worked under that scheme till June, 1996. Thereafter, in pursuance of letter bearing No. 7/E 3/A 2041/ 95 nominations were asked from the Health Department as well as other Departments where doctors of Health cadre were available for filling the post of Factory Inspector (Medical). The names of Respondent Nos. 5 & 6 along with other doctors were sent with their service records, character rolls and experience rendered in Industrial field. Director, E.S.I. put all the nominations before the Establishment committee for consideration. Considering experience and knowledge which required for employment on the post of Factory Inspector, Two names of Respondent Nos. 5 & 6 were selected by the committee for the post of Factory Inspector (Medical) in June, 1996. Posting of Factory Inspector (Medical) is not only a question of transfer, but requisite experience and knowledge is required for this posting.

The writ application, was initially filed, simply to quash the order, by which petitioner''s service has been returned to his parent Department, by the Labour Department which is not maintainable.

Respondent Nos. 5 & 6 have also stated that the petitioner has dragged them in this dispute for no reason. The notification as contained in Annexure-2, has no connection with letter No. 70 dated 4th April, 2003. It was general notification by which Health Deptt. sent service of the petitioner to the Labour Department for his posting. There is no illegality in remitting the service of the petitioner to the Department of Health, his parent Department.

Considering the rival contentions of the parties and their pleadings I find that the petitioner has no case as far as the services of the respondent Nos. 5 & 6 have been absorbed on permanent basis in the Labour Department. This is within the jurisdiction of the department concerned, as to whose service they want to retain and whose services are returned to parent department. The documents which have been annexed indicates that the Labour Department requested the Health Department for retaining service of respondent Nos. 5 & 6 and for absorption of their service in the cadre of Labour Department. Health Department accorded its approval and Department of Finance also approved it. In this circumstance, petitioner has no reason to challenge it. He has no case, which can be entertained. In this view of the matter, the petitioner has failed on both counts.

So far the initial prayer is concerned, it has become in fructuous amended relief also cannot be allowed in favour of the petitioner, considering the fact, that it is a case of permanent absorption, and not a case of transfer/deputation. While the matter was being concluded, petitioners'' counsel has stated that petitioner has not been paid his salary, for the intervening period, i.e. the period when his service was returned to Health Department and finally he was posted at Rajgir and joined there. The Secretary-cum-Com-missioner, Health Department, Government of Bihar is directed to consider the case of the petitioner regarding payment of salary for intervening period as in compliance of this court''s order, petitioner has joined at his transferred place. The period for which petitioner had not been paid, salary should be considered in accordance with law. This decision must be taken within four weeks, from the date of production/communication of this order. So far this writ application is concerned, it is dismissed.