JUDGMENT Tarun Agarwala, J.
1. In order to streamline the medical practice in the State of U.P., a learned Single Judge issued various directions to the State Government. Direction No. 8 which is relevant for the purpose of this case is quoted hereunder :
"The Principal Secretary Medical Health and Family Welfare, is directed to ensure that no medical officer in the Government service is posted beyond three years in any district and that all para medical staff serving in the Primary Health Centre/ Community Health Centre/District Hospitals and other hospitals run by Government of U.P. for more than five years, shall be transferred from the Centre/hospital. Any doctor in employment of State Government offering their services to the authorised medical practitioners shall face immediate disciplinary action by the State Government, and shall be prosecuted for aiding and abetting such unauthorized practice."
2. Against the judgment of the learned Single Judge, a Special Appeal No. 320 of 2004, Dr. Ravindra Kumar Goyal and Ors. v. State of U.P. and Ors. was filed. The judgment of the learned Single Judge was affirmed subject to the modification with regard to direction No. 8. The Division Bench issued the following directions :
"In our opinion, it is correct to say that the principles of transfer are policy matters, and they should ordinarily be decided by the State Government and .not by this Court. Hence, we modify direction No. 8 contained in the judgment of the learned Single Judge, and we hold that this directive shall be treated as a recommendation rather than a binding directive on the State Government. However, we would like to say that we fully agree and share the concern of the learned Single Judge in this connection. Obviously what motivated the learned Single Judge in issuing such a direction was that several government doctors managed their place of posting in big cities for long periods as they have connections with high ups, and such government doctors often run their private clinics also where they spend most of the time instead of attending their duties in Government hospitals. Hence, it is obvious that what the learned Single Judge intended to say was that this practice should be stopped as it would not/De fair to other doctors who do not have connections with high ups and remain posted in the rural areas for a long time. We fully agree with the learned Judge that there should be fair treatment to all government doctors and transparency in the matter.
Hence, we direct the State government to frame a scheme regarding transfer and posting of the government doctors so as to ensure fair treatment to everyone and no special benefit to those who have contracts with high ups. This scheme framed by the State Government must not only provide for fair treatment to all government doctors in the State regarding their transfer and posting, but also ensure that sufficient number of doctors are posted in rural areas in rotation, since presently the position is that even those who are technically posted in rural areas often do not go to rural areas except, say, for one or two days in a month for the sake of formality and they hardly stay there one or two hours and then come back to the cities. Because of this practice quacks have mushroomed in the rural areas because there are no government doctors usually available in the rural areas. This is not fair to the people in the rural areas who are the majority in our country. The state Government must not only do posting of government doctors in rotation to rural area but also ensure that those who are posted in rural areas really work there during their official hours. For this purpose the State Government must provide for suitable residential accommodation commensurate to the status of the doctors hear the Family Health Centre/ Community Health Centre where they are posted. Also such residential accommodation must be provided water, electricity and other basic essential facilities. In the absence of these it is unrealistic to expect the government doctors to remain in rural area for a long period. Apart from that, we are of the opinion that the doctors who are posted in the rural areas should be given some adequate special allowances because they have to usually maintain double establishment since their wives and children usually remain in cities because their children are studying in schools there.
The scheme mentioned above should ensure that there should be rotation between those who are posted in urban areas and those who are posted in rural areas so that a person who is posted for, say, three or four years in a city should thereafter be sent for 3 or 4 years to a rural area. Such a scheme would be fair to all government doctors and thereby avoid unnecessary bickering and heart burning. The scheme framed by the State Government should also provide that the government doctors who are conniving with the unauthorized medical practitioners [quacks] shall face disciplinary action and the scheme framed by the Government should also remove the possibility of the government doctors in developing contacts with the quacks."
3. The aforesaid judgment is reported in 2004 [2] ESC 976.
4. The Division Bench, while modifying the direction of the learned Single Judge, held that the Scheme should ensure that there should be a rotation between those who are posted in the urban areas and those who are posted in the rural areas and that a person who was posted for three or four years in an urban area would thereafter be sent for three or four years to a rural area.
5. Based on the aforesaid directions, the State government framed a scheme dated 10.6.2004 with regard to the transfer of the persons employed in the medical department. The scheme contemplated that a paramedical staff would not remain in a district hospital/Swasthya Kendra or Primary Health Centre for more than seven years and if para medical staff was to be transferred to another district in that event, the Chief Medical Officer would refer the matter to the Additional Director.
6. Based on the aforesaid directions of the Court and the transfer policy framed by the State Government, the Chief Medical Officer, Varanasi issued a transfer order dated 15/16.10.2004 transferring the petitioners to S.S.P.G. Hospital, Varanasi. The petitioner no. 1 contended that he was working at the Primary Health Centre, Kashi Vidyapeeth, district Varanasi since 1995, which was a rural posting and that he was rightly transferred to S.S.P.G. Hospital Varanasi, which is an urban posting as per the transfer scheme as he had worked for more than seven years. The petitioner no. 2 contended that, since July 1994, he was working at the Community Health Centre, Chholapur, district Varanasi, which was a rural posting and was rightly transferred to S.S.P.G. Hospital Varanasi, which is an urban posting as per the transfer policy. Based on the aforesaid transfer order, the petitioners joined and are working at S.S.P.G. Hospital, Varanasi. It transpires that the Additional Director issued another transfer order dated 25.11.2004 transferring respondent nos. 4 and 5 from Varanasi to Ghazipur and the respondent nos. 6 and 7 from Ghazipur to S.S.P.G. Hospital, Varanasi and a further direction was issued to the Chief Medical Officer to post other Para Medical Officers elsewhere. The petitioners are aggrieved by this transfer order dated 25.11.2004 and have filed the present writ petition alleging that pursuant to the order dated 25.11.2004, they would again be transferred to a rural posting.
7. Heard Sri S.D. Singh, the learned counsel for the petitioners, the learned standing counsel appearing for respondent nos. 1 and 2, Sri Atul Srivastava, the learned counsel appearing for respondent nos. 4 and 5 and Sri M.Sarwar Khan, the learned counsel appearing for respondent nos. 6 and 7.
8. From a perusal of the impugned order, it is clear, that the respondent nos. 4,5,6 and 7 applied for a mutual transfer and based on their representation, the respondent Nos. 4 and 5 were transferred from Varanasi to Ghazipur and the respondent nos. 6 and 7 were transferred from Ghazipur to Varanasi.
9. Both the parties are contending that the transfer orders have been issued in violation of the directions of this Court as well as in violation of the transfer policy framed by the State Government,
10. Taking up first, the case of the petitioners, the petitioner no. 1 has alleged in paragraph-4 of the writ petition that he had been working since 1995 at the Public Health Centre, Kashi Vidyapeeth, (Varanasi, which is a rural posting. This fact has been denied specifically by the respondent nos. 1 and 2 in paragraph-6 of the counter affidavit. The petitioner no. 1 has only made a bald denial in paragraph-7 of the rejoinder affidavit and has not filed any proof in support of his allegation that the Public Health Centre, Kashi Vidyapeeth, Varanasi is in the rural area. Respondent nos. 6 and 7 have filed a Supplementary Counter affidavit. In para 7 of the Supplementary Counter Affidavit, they have asserted that the Public Health Centre, Kashi Vidyapeeth is a rural posting and, in proof of this fact, has annexed a certificate of the Chief Medical Officer, Varanasi. This certificate has not been denied by the petitioner. On the other hand, the petitioner has annexed a list of 1993 indicating that this centre was a rural centre. In my view, the conclusion drawn from the aforesaid, and in view of the certificate of the Chief Medical Officer, the Primary Health Centre, Kashi Vidyapeeth, Varanasi, is in an urban area.
11. In so far as the petitioner no. 2 is concerned, it is alleged in paragraph 7 and 8 of the writ petition that since July 1994, he had been working at the Community Health Centre, Chholapur, district Varanasi, which was a rural posting. This fact has not been denied by respondent nos. 1 and 2 in paragraph 7 of their counter affidavit. Respondent Nos. 4 to 7 have however, denied this fact in para 6 of the counter affidavit. The petitioner nos. 1 and 2 were transferred by an order dated 15/16.10.2004 to S.S.P.G. Hospital, Varanasi which, according to the petitioners, was an urban posting. In view of the aforesaid, since the State Government, respondent nos. 1 and 2 have not denied para? and 8 of the writ petition, I hold that the Community Health Centre Chholapur, district Varanasi is in a rural area.
12. The question now is, whether the posting of petitioner nos. 1 and 2 had been issued in accordance with the directions given by this Court and in accordance with the transfer policy framed by the State Government.
13. Admittedly, both the petitioners were working for more than seven years in district Varanasi and, therefore, as per the scheme it was imperative for the petitioners to be transferred outside the District of Varanasi. By the impugned order, the petitioners have again been posted in District Varanasi, which could not have been done. The petitioners, having worked in district Varanasi for more than seven years, were liable to be transferred outside the district of Varanasi. The petitioner no. 1, having worked in an urban area in district Varanasi, was now required to be posted in a rural area outside the district of Varanasi. Similarly, petitioner no. 2, having worked in a rural area in district Varanasi, was required to be posted in an urban area but outside the district of Varanasi.
14. Even though, the petitioners are not aggrieved by this order, nonetheless, since this order has been annexed to the writ petition and it has been noticed by the Court, I am of the view, that this transfer order was against the directions given by this Court in the aforesaid special appeal and is against the transfer policy of the State government. The said transfer policy has been issued in violation of the judgment of this court. Consequently, the transfer orders dated 15/16.10.2004 cannot be sustained and is hereby quashed,, even though, the petitioners have not prayed for this relief. It seems that the petitioners in order to remain in Varanasi, got this transfer order executed from the Chief Medical Officer, who in the case of the petitioners, had no power to issue the transfer order, and that the Chief Medical Officer should have referred the matter to the Additional Director, since they were liable to be transferred outside the district.
15. Taking up the case of the respondents, the petitioners have alleged in paragraph 22 of the writ petition that respondent nos. 4 and 5 had been working at S.S.P.G. Hospital, Varanasi, for more than ten years which is an urban posting. This fact is admitted by respondent nos. 1 and 2 in paragraph 13 of the counter affidavit and has not been denied by respondent nos. 4 and 5 in paragraph 12 of the counter affidavit. In paragraph 23 of the writ petition, the petitioners have alleged that respondent nos. 6 and 7 were working at Community Health Centre, Saidpur, district Ghazipur and at District Hospital, Ghazipur, respectively and, that both these centres were in the urban area and therefore, urban postings. This fact has been denied by respondent nos. 6 and 7 in paragraph 14 of the counter affidavit as well as by respondent nos. 1 and 2 in paragraph 14 of their counter affidavit. The petitioners in paragraph nos. 25 and 26 have again reiterated that Saidpur is the town area and is an urban posting and, in support of their contention have annexed an order of the Executive Officer, Nagar Panchayat Saidpur, dated 10.5.2005, which indicates, that the Nagar Panchayat Saidpur, district Ghazipur comes under a town area. The respondent nos. 6 and 7 have not filed any proof with regard to the fact that Saidpur is a rural posting. Consequently, in my opinion, the transfer order dated 25.11.2004 issued by the Additional Director is against the directions issued by this Court as well as the transfer policy issued by the State Government. The respondent nos. 4 and 5 were working in S.S.P.G., Varanasi for more than ten years and were liable to be transferred to a rural posting outside the district. Consequently, their transfer to Ghazipur is incorrect, inasmuch* as the District Hospital Ghazipur and Community Health Centre, Saidpur are not rural postings but are urban postings. Their transfer order to Saidpur is illegal. The transfer orders of respondent Nos. 6 and 7 to Varanasi are also incorrect for the same reason, as they were posted in an urban area and have been transferred again to an urban area.
16. In view of the aforesaid, the transfer order dated 15/16,10.2004 transferring the petitioners to S.S.P.G. Hospital Varanasi are quashed. The Chief Medical Officer had no jurisdiction to transfer the petitioners inasmuch as, the petitioners have completed more than seven years in a particular district and were liable to be posted outside that district. The transfer order dated 25.11.2004, transferring the respondent nos. 4 and 5 to Ghazipur and respondent Nos. 6 and 7 to Varanasi is also illegal for the reasons that they were posted in an urban area and have again been transferred to an urban area.
17. In view of the aforesaid, the transfer orders dated 15/16.10.2004 and 25.11.2004 are hereby quashed. The Additional Director, Medical Health and Family Welfare, Varanasi Division; Varanasi, the respondent no. 2 is directed to pass fresh orders with regard to the transfer of the petitioner's as well as Respondent Nos. 4 to 7, within two weeks, in the light of the observations made above. In view /of the aforesaid, the writ petition is disposed of. Parties shall bear their own costs.
18. A certified copy of this order shall be made available to Sri J.K. Khanna, the learned Standing Counsel within ten days to enable him to forward the order to the Additional Director, the respondent no. 2, for necessary action.