The employer's prerogative to allocate duties can be subject to court intervention in the interest of patient care and fair treatment of employees.

JUDGMENT

Amrita Sinha, J. - The instant writ petition is a sequel of the order passed by an Hon'ble Division Bench of this Court on 25th August, 2020 in MAT 486 of 2020 with CAN 4324 of 2020 and CAN 4325 of 2020.

2. In an earlier writ petition filed by the petitioner being WP 5692 (W) of 2020 challenging his order of transfer, the learned Single Judge by an order dated 2nd July, 2020, as an interim measure, restrained the respondents from giving any effect to the impugned order of transfer dated 22nd June, 2020 for a period of eight weeks. In an appeal preferred by the Union of India against the aforesaid order, the Hon'ble Division Bench by the order dated 25th August, 2020 was pleased to set aside the order of transfer with a further direction upon the Ministry to reschedule the transfer roster accordingly.

3. In compliance of the order passed by the Hon'ble Division Bench, the Ministry by an order dated 23rd September, 2020 posted the petitioner at the Composite Hospital, BSF Kolkata.

4. The petitioner's grievance, primarily, is that though the respondent authority has retained him at Kolkata but with a mala fide intention did not reschedule the transfer roster. In view of not rescheduling the transfer roster, the person who was originally transferred to Kolkata i.e; Dr. Subrata Chakraborty, the private respondent herein, has been retained at Kolkata and the petitioner has been posted at Kolkata. The same implies that presently two persons are serving as the Medical Superintendent of the Composite Hospital, Kolkata.

5. The petitioner refers to the BSF manual, Medical Directorate wherefrom it appears that in respect of a 50 bedded hospital there is only one sanctioned post of Medical Superintendent. It has been submitted that the respondent authorities are acting contrary to their own guidelines and have engaged two medical superintendents in the Composite Hospital which is a 50 bedded one.

6. The petitioner has filed a supplementary affidavit annexing the office order dated 28th September, 2020 wherein the duties of the two medical superintendents of the Composite Hospital, Kolkata have been mentioned. According to the petitioner the duties have been allotted to him in such a manner that the same completely nullifies the purport of the order of the Hon'ble Division Bench.

7. It has been contended that the duties which were performed by the petitioner previously have been assigned to the private respondent and the nature of the duties allotted to the petitioner is such, that it appears that the petitioner is a subordinate officer of the private respondent.

8. It has been argued that though there has not been any change in the scale of pay but from the nature of the duties assigned to the petitioner it appears that he has been placed under the command of the private respondent.

9. The petitioner prays for partial withdrawal of the impugned order of transfer.

10. The petitioner relies upon a judgment delivered by the Hon'ble Supreme Court in the matter of Vice-Chancellor, L.N.Mithila University -vs- Dayanand Jha, (1986) 3 SCC 7 paragraphs 7 and 8 in support of his contention that equivalence of the pay scale is not the only factor in judging whether the posts are equivalent or not. The true criteria for equivalence are the status and the nature and responsibilities of the duties attached to the two posts.

11. The learned advocate representing the private respondent vehemently opposes the prayer of the petitioner. It has been vociferously contended that the writ petition is not maintainable. The petitioner does not have the locus standi to file the writ petition as he is not an aggrieved person. It has been argued that as the order of the Hon'ble Division Bench has been duly complied with by the respondent authority the petitioner ought not to have any further grievance.

12. The private respondent relies upon the decision delivered by the Hon'ble Supreme Court in the matter of Dr. Umakant Saran -vs- State of Bihar & Ors., (1973)