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IN THE HIGH COURT OF ALLAHABAD
J. K. Tandon, J.
PREM BEHARILAL SAKSENA - Appellant
Versus
DIRECTOR OF MEDICAL AND HEALTH SERVICES, LUCKNOW - Respondents
Civil Misc. Writ 415 Of 1958
Decided On : 12/12/1958
TRANSFER AND SUSPENSION - GOVERNMENT SERVANT - APPOINTED TO SPECIFIC POST - NOT LIABLE TO TRANSFER - SUSPENSION BY AUTHORITY NOT APPOINTING AUTHORITY - WITHOUT JURISDICTION.
Fact of the Case:
The petitioner was appointed as an Anaesthetist at the State hospitals at Kanpur by the Governor. The appointment order did not include any condition or term wherefrom liability for transfer could be inferred. The petitioner was transferred from Kanpur to Varanasi by the Director of Medical and Health Services. The petitioner challenged the transfer order and the suspension order passed by the Director.
Finding of the Court:
The court held that the petitioner was appointed to a specific post at Kanpur and was not liable to transfer. The court also held that the Director of Medical and Health Services did not have the authority to transfer the petitioner or to suspend him.
Issues: 1. Whether the petitioner was liable to transfer from his post at Kanpur? 2. Whether the Director of Medical and Health Services had the authority to transfer the petitioner? 3. Whether the Director of Medical and Health Services had the authority to suspend the petitioner?
Ratio Decidendi: 1. The court held that the petitioner was not liable to transfer from his post at Kanpur because his appointment order did not include any condition or term wherefrom liability for transfer could be inferred. The court also held that the petitioner's post was in its very nature such that it could be performed at Kanpur only. 2. The court held that the Director of Medical and Health Services did not have the authority to transfer the petitioner because Rule 15 of the Fundamental Rules, which gives power to the State Government to transfer a Government servant from one post to another, did not apply to the petitioner's case. The court held that Rule 15 presupposes the existence of two or more posts on which the particular servant can be asked to work, but the petitioner had been appointed to a specific post only. 3. The court held that the Director of Medical and Health Services did not have the authority to suspend the petitioner because Rule 49-A of the Civil Services (Classification, Control and Appeal) Rules, which gives the power to suspend a Government servant, only gives that power to the appointing authority. The court held that the appointing authority in this case was the Governor, and the Director of Medical and Health Services had not been delegated this authority.
Final Decision: The court quashed the transfer order and the suspension order.
( 1 ) THE petitioner in this case is one Dr. Prem Behari Lal. The relevant facts minus unnecessary details are that he was appointed by the Government on the post of Anaesthetist at the State hospitals at Kanpur which are Ursla Horsman Memorial Hospital and Sri Lajpat Rai Hospital. This was done in 1951 on a scale of 200-10-250 EB 10-310 EB 14-450. Prior to his appointment on this post the Public Service Commission was in the usual course asked to make the selection. The notification issued by the Public Service Commission inviting applications from prospective candidates has been filed as Anncxure 4 to the main affidavit of the petitioner. In this document various matters which it was necessary to notify to the candidates were also mentioned but the one which is directly relevant here was as follows :
"each Anaesthetist will be under the direct control of the Civil Surgeon of the District concerned and will administer anaesthetics to the patients at the Government hospitals in the city under the directions of the Civil Surgeon. He will not be attached to any particular hospital but will serve all the State hospitals in the city and will aiso train medical officers in the art of administrating anaesthetics. "
Here it may be mentioned that the advertisement issued by the Public Service Commission was for two posts of Anaesthetists, one each for Allahabad and Kanpur. The petitioner was ultimately selected by the Public Service Commission for the post at Kanpur and recommended accordingly to the State Government. Subsequent to this recommendation the Government made the appointment of the petitioner. There are two such orders, one issued in November 1950 in which there were certain terms which it seems were not acceptable to the petitioner. The latter therefore represented against them to the State Government which modified the earlier terms and issued a fresh appointment letter on March 31, 1951. There was, it appears, some further difficulty about the terms which were ultimately modified and communicated to the petitioner on September 1, 1951 by letter, annexure 3. So far as the appointment of the petitioner went, it took place under the order of the Governor, copy whereof is Annexure. The relevant portion of this order may be reproduced here and is :"in supersession of this office order No. II F 174 E/4713683, dated 4-12-1950 the Governor has subject to the approval of the Public Service Commission U. P. Allahabad been pleased to appoint Dr. Prem Behari Lal Anaesthetist of the Medical College and Associated Hospitals lucknow to the post of an Anaesthetist at the State Hospitals at Kanpur in the scale of pay of Rs. 220-10-250 EB 10-310 EB 14-450 subject to the following terms and conditions:"
The order then describes certain conditions including that he shall be on probation for a period of one year. What is significant, however, is that no mention was made in this order about his liability for transfer from the post to which he had been appointed. The petitioner continued to serve on this post thereafter and was ultimately confirmed with effect from 10-9-1955. In the confirmation order sent to him it was once again stated that he had been confirmed as an anaesthetist Ursla Horsman Memorial Hospital Kanpur. It further appeared that after he had been appointed the petitioner represented to the State Government for declaring his post to belong to one or the other State Medical Services. The reply that he got, however, was that it was an ex-cadre post meaning thereby that he could not be placed on the cadre of one or the other services. In October 1957 he was served with an order Annexure 9 transferring him from his the then post at Kanpur to S. P. Gupta Hospital at varanas. This was issued under the signatures of the Additional Director of Medical Services. On receipt of the above order the petitioner represented to the Director that inasmuch as his appointment was to a specified post, namely, as Anaesthetist to the
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