DIWAKAR KAMAT Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THIS writ petition is filed by the petitioner essentially seeking the issue of a writ of mandamus directing the respondents to give effect to an order of transfer dated 18.8.2001, notified by the Health & Family Welfare Department, Government of Jharkhand. The transfer related to 137 doctors in Medical Services. The petitioner who was working in Prinary Health Service, Palajori, Deoghar, was transferred as a Medical Officer, Public Health Laboratory and Hospital, Jamshedpur, in the place of one Dr. Dilip Kumar, who was working as a Medical Officer, M.G.M. College and Hospital, Jamshedpur. Dr. Dilip Kumar and certain others involved in that transfer, challenged that order of transfer before this Court in C.W.J.C. No. 3910 of 2001. By judgment dated 29.8.2001, this Court dismissed the said writ petition. In other words, the challenge to the order of transfer dated 18.8.2001 was repelled. Dr. Dilip Kumar and others filed an appeal before this Court as L.PA No. 545 of 2001, challenging the dismissal of their writ petition. In that appeal, on 1.7.2002, an agreed order was passed to the effect that the appellants in that appeal, including Dr. Dilip Kumar would make representations within a week before the Secretary, Health & Medical Education Department, Government of Jharkhand, and the same would be considered on its own merits in the light of the applicable Policy, Rules and Regulations and will be disposed of by a speaking order. It was also ordered that till the representation was disposed of, the status quo existing on the date with respect to the posting of the appellants, shall continue.

(2.) ACCORDING to the petitioner, who was not a party to that writ petition, he joined his new post on 1.9.2001. His joining was accepted. But his salaries were not being paid. The authority concerned of the Institution, in which the petitioner joined, wrote various letters to the Deputy Secretary and the Secretary, Health and Medical Education Department, Government of Jharkhand, pointing out that the petitioner had joined service pursuant to the order of transfer on 1.9.2001, but the petitioner was not being paid salary and pointing out that based on an understanding of the order of High Court to maintain status quo, Dr. Dilip Kumar and two others had not been relieved from their posts. It appears that Dr. Dilip Kumar and others filed representations before the Secretary, Health and Medical Education Department, within the time fixed by the Division Bench of this Court in L.PA No. 545 of 2001. But, inspite of repeated letters sent by the concerned authority of the Institution, in which the writ petitioner joined on 1.9.2001, and in spite of the direction by the Division Bench, no order was passed on them by the Secretary, Health and Medical Education Department. The confusion was allowed to continue and the petitioner, as alleged by him, was made to suffer by not being paid his salaries from the period 1.9.2001. It was in that context that the petitioner filed the present writ petition on 14.5.2003, praying for implementing the order of transfer dated 18.8.2001, upheld by the learned Single Judge and not interfered with by the Division Bench. On 3.6.2003, the learned Single Judge before whom the matter came up that the matter required to be considered by the Division Bench since what was involved was the understanding of the scope of the order to maintain status quo passed by the Division Bench and whether it was operative in perpetuity as it were. That is how, the matter has come up before the Division Bench.

(3.) LEARNED counsel for the petitioner contended that the order, Annexure -1 dated 18.8.2001, was upheld by the learned Single Judge and in that situation the joining of the petitioner with effect from 1.9.2001, which is admitted, should have been taken note of and he petitioner should have been paid salaries on the basis that the petitioner was in active service and was working during that period. Learned counsel relied on the observations of the Supreme Court in Paragraph 7 of the judgment in Union of India vs. K. V. Jankiraman, AIR 1991 Supreme Court 2010, to point out that the petitioner could not work, not because he did not want to work or for his own reason, but he was prevented from working by the respondents, according to the petitioner, by misinterpreting the order of status quo and with a view to deliberately favouring some persons, who were affected by that order, and in that situation, there was no justification in not paying the arrears of salary due to the petitioner. Counsel also submitted that nothing stood in the way of the order of transfer being implemented in full then and there though the order has now been implemented in view of the interim direction issued by this Court.