Court No.4.
Writ Petition No.1664 (S/B) of 2009.
Dr. Ashok Kumar Srivastava and others. ...Petitioners.
Versus.
The State of U.P. and others. ...Respondents.
Hon'ble Sunil Ambwani,J.
Hon’ble Vedpal,J.
Heard learned counsel for the petitioner Shri A.K.Verma and the learned
counsel for the State.
The petitioners were serving as the Medical Officers in various Ayurvedic
Dispensaries. By the order dated 3.11.2009 passed by the Principal Secretary,
Government of U.P., they have been transferred to the Ayurvedic Medical Colleges,
temporarily to serve as Medical teachers until the vacant posts in the State
Ayurvedic Colleges is filled up by the U.P.Public Service Commission.
Shri A.K.Verma learned counsel for the petitioners submits that the teaching
posts in the State Medical Ayurvedic College, is in a different cadre and that these
posts cannot filled up by the medical officers. Under fundamental Rule 15 (D), the
petitioners could not be transferred unless options were taken from them and that
the transfer order in such situation, can be passed only with the approval of the
Governor.
It is contended by the counsel for the State that since the petitioners hold
post graduate qualifications and are eligible for teaching in Ayurvedic Medical
Colleges, in exigencies of services, vide order dated 3.11.2009, they have been
posted in Medical Colleges because the required posts could not be filled up in
spite of the efforts made by the U.P. Public Services Commission and they have
been temporarily posted to meet the exigency of the situation after consultation
with the Commission.
Learned Addl. Chief Standing Counsel has pointed that the similar petitions
challenging the same transfer order, taking the same ground, was dismissed both at
Allahabad and at Lucknow. In writ petition no.63657 of 2009 : Ravi Shanker Rai
Vs. State of U.P. and others, this Court dismissed the writ petition at Allahabad
with the following observations :
“The learned counsel for the respondents submits that this arrangement
has been made due to exigency of service, since several posts of
teachers in Rajkeeya Ayurvedic and Unani Colleges are lying vacant
which was causing great hardship in teaching, a temporary arrangement
has been made by posting the Medical Officer of Rajkeeya Ayurvedic and
Unani Chikitsalaya. He contends that as soon as the selection and
appointment of Chikitsa Shikshak is made the petitioner shall be returned to
his original cadre. The Government order dated 3.11.2009 clearly
mentions that the several posts of medical teacher in different Ayurvedic
and Unani colleges are vacant which may for the time being filled up
by the medical officers of Rajkeeya Ayurvedic and Unani Chikitsalaya. It
has been clarified that this arrangement has been made temporarily
:2:
and after the regular selection in Government Ayurvedic and Unani
Colleges, decision for return of the medical officers to their original cadre
shall be taken.
The petitioner has been asked to teach in Government Ayurvedic
and Unani Colleges due to exigency of service which is in the interest of
State Government and as admitted by the respondents’ authorities that this
is a temporary arrangement and the petitioner shall be returned to his
original cadre after regular selection of the Ayurvedic and Unani teacher is
made we see no justification of interfere under Article 226 of the
Constitution of India in facts and circumstances noted above specially
when arrangement is only temporary.”
Following the same reasoning, the writ petition no.1772 (S/B) of 2009 : Dr.
Brijesh Singh Katiyar and others Vs. State of U.P. and others was dismissed at
Lucknow on 24.11.2009.
The submissions made by Shri A.K.Verma that transfer order cannot be
made unless the options are invited and with the approval of the Governor, was
indirectly considered and rejected.
The petitioners have not been posted in different cadre on teaching posts
permanently. It is a temporary arrangement and will cease on filling up of the posts
by the Public Service Commission.
We do not find any good ground to interfere in this petition. The writ
petition is dismissed.
11.1.2010.
Tripathi.