DR. R. VITTAL RAO Vs. STATE OF KARNATAKA BY ITS SECRETARY TO GOVERNMENT, HEALTH DEPARTMENT, BANGALORE AND ANOTHER

JUDGEMENT

(1.) This matter coming up for preliminary hearing in 'B' Group after notice to respondents, is disposed of by the following order. The learned Government Pleader was directed to take notice on 13-6-1983. Since then the case was appearing again and again in the cause list without any progress. Even today, the learned Government Pleader is without instructions. The whole procedure of issuing notice proposing to issue rule is to expeditiously dispose of matters where there is some degree of urgency. But from the actual result, it is most regrettable that the practice does not appear to serve the purpose for which it was devised. The records disclose, as far back as in July, 1982 itself the respondents have received the notice issued by the Court Till the following year i.e., 11 months after, no action was taken by the respondents to get themselves represented and state the case by filing the return. It is in that circumstance that the Government Pleader was directed to take notice on 13-6-1983. Even then no instructions have been obtained and placed before the Court.

(2.) The petitioner is an employee of the State. He was working as Assistant Surgeon Class-I in the Government Health Department since 1958. While he was working as Health Officer-cum-Assistant Surgeon at E.S.I. Hospital, Bangalore, he was transferred from the E.S.I. Hospital to Primary Health Centre, Hesargatta. The petitioner has alleged that on account of his feeble health and due to an accident he was not in a position to do strenuous field work. He, therefore, applied for leave and got the same extended. Thereafter, he made a representation for cancellation of his transfer on grounds of health. He even requested that he may be posted to a General Hospital where he would not be required to do very strenuous work. His representations were not responded to in any manner. He was, however, served with a notice dated 25th July, 1983, informing him that articles of charges along with the notice in duplicate received by the Government arc forwarded to him, which he should suitably reply by submitting a statement of defence and also acknowledge receipt of the charge memo. That notice was issued by the Director of Health and Family Welfare Services-2nd respondent herein. The petitioner has asserted that he has not been suspended from service. In any event, he has not received any order of suspension passed by the Government pending any enquiry. Despite his request for a copy of the suspension order to which a reference was made in the notice of 25th July, 1983, the Under Secretary to the Government, Health and Family Welfare Department, by his letter dated 19th July, 1982, a copy of which is produced at Annexure-F to the petition, evasively informed that the copy of that letter may be obtained from the Director of Health and Family Welfare Services to whom the same had been sent for service on the petitioner. In other words, it is not known whether the suspension order was ever served on the petitioner the petitioner has further asserted that after his long illness and accident, he made attempts to report himself for duty at Hesargatta Primary Health Centre where he had been transferred in the first instance before he took leave and found that post had been filled by some one else presumably due to his going on long leave. Thereafter, he made representations for another posting which has not been given to him. It is also asserted that pursuant to the memo of charges alleged to have been issued to him, no enquiry has been conducted so far. It is in these circumstances he has approached this Court with a prayer that a writ of mandamus may issue directing the respondents to give a posting to the petitioner and assign to him the duties.

(3.) I have already stated that the Government has been sleeping over the matter even after the petitioner has approached this Court for the last two years. They have not filed the return much less have the respondents instructed the Government Pleader. In that circumstance this Court must assume that the assertions made by the petitioner are true, as the same not having been controverted. If the assertions are held to be true, as there is no evidence of the petitioner having been dismissed or removed from service, he is entitled to the mandamus prayed for. As long as he is a Government servant borne on the Cadre, he must receive a posting order. A writ will issue directing the respondents 1 and 2 to issue the posting order within one week from the date of receipt of the copy of this order. The petitioner is also entitled to in the circumstances of the case for all back wages including allowances from 23-6-1980 till the date he is given a posting. Admittedly and obviously he cannot be be deemed to be under suspension, as no suspension order has been served on him.