VEENA PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and learned counsel for the State, The petitioner is aggrieved by order dated 11.6.2005, by which she was transferred to the post of Civil Surgeon, Araria.

(2.) THE short fact of the case is that since 2003 the petitioner was posted at Lakhisarai as Civil Surgeon but by order dated 28.4.2005, which was a chain transfer, one Dr. Ganesh Kumar Srivastava, who was Deputy Superintendent of Gardanibagh Hospital, was transferred to the post of Civil Surgeon, Lakhisarai in place of the petitioner and the petitioner was not shown to be posted any where. Hence the petitioner joined in Headquarter on 2.5.2005, where her joining was accepted. She had also filed C.W.J.C. No. 6926/2005 in thes Court for mandamus to post the petitioner as Regional Deputy Director or equivalent post as the persons junior to her were posted to such posts, which is a post higher than the post of Civil Surgeon. The said writ petition is pending. In the meantime the petitioner also filed a representation before the Commissioner -cum -Secre - tary, Health Department on 17.5.2005 for proper posting as per her seniority.

(3.) ON the other hand, learned counsel for the State vehemently opposes the contention of the learned counsel for the petitioner and submits that during her posting as Additional Chief Medical Officer, Nawadah she absented herself from duty in an unauthorised manner for several months and only when she learnt that she was being posted as Civil Surgeon she joined and thereafter when she was posted as Civil Surgeon, Lakhisarai, she again absented herself in an unauthorised manner for more than two years and hence she has developed a habit to avoid duty and to remain in unauthorised absence. He further submits that in the said circumstances, Dr. Ganesh Kumar Srivastava was appointed as Civil Surgeon, Lakhisarai, on the approval of his Excellency the Governor and further due to her negligence and dereliction in duty she was asked to join in Headquarter and departmental proceeding was also initiated against her, which is pending. Furthermore, in paragraph 6 of the counter affidavit the respondents have stated that Dr. Rajdhari Ranjan belongs to Scheduled Caste category, while the petitioner belongs to General category, hence both of them cannot be compared. In the said circumstances, learned counsel for the State submits that the impugned order of transfer was genuine and without any malafide. In this connection learned counsel for the State relies on several decisions of the Hon ble Apex Court in the cases of Union of India and Ors. vs. Janardhan Debanath and., another, reported in (2004)4 S.C.C. 245, State of U.P. and another vs. Siya Ram and Anr., reported in (2004)7 S.C.C. 405, State of U.P. and Ors. vs. Gobardhan Lal, reported in (2004)11 S.C.C. 402 and Kendriya Vidyalaya Sangathan vs. Damodar Prasad Pandey and Ors. (2004)12 S.C.C. 299. In the said decisions it has been held that in absence of malafide the transfer should not be interfered with as under the writ jurisdiction question of fact cannot be considered and that transfer to another post in the same category on account of inefficiency and misbehaviour cannot be interfered with on the ground of loss of seniority or promotional prospects. In the said circumstances, learned counsel for the respondents -State submits that there is no merit in this writ petition, which is fit to be dismissed.