IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 10754 of 2010 1. RAMESH KUMAR SHARMA S/O LATE DHIRENDRA NATH SHARMA R/O VILL.- SIPAH ARWAL, P.S. ARWAL, DISTT.- ARWAL Versus 1. THE STATE OF BIHAR THROUGH ITS COMMISSIONER CUM SECRETARY DEPARTMENT OF HEALTH SERVICE, GOVT. OF BIHAR, PATNA, NEW SECRETARIAT 2. DIRECTOR-IN-CHIEF HEALTH SERVICES, GOVT. OF BIHAR, PATNA, NEW SECRETARIAT 3. CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, JEHANABAD ----------- 2 12.10.2010 The petitioner was posted as Clerk in the Primary Health Centre, Okari, district – Jehanabad. On administrative grounds, he was transferred by orders of the Civil Surgeon, Jehanabad dated 07.05.2010. The petitioner, being aggrieved by the said order of transfer, filed a representation before the Regional Deputy Director, Health Services, Magadh Division, Gaya who considered the matter and, by his order dated 18.05.2010, set aside the transfer order as passed by the Civil Surgeon, Jehanabad. The petitioner, thus, remained at the original place. The petitioner is then visited by the impugned suspension order issued by the Civil Surgeon, Jehanabad on 24.06.2010 (Annexure-7). It is this order of suspension that is primarily under challenge on the ground that it suffers from malice in law. A counter affidavit has been filed on behalf of the Civil Surgeon, Jehanabad justifying the action he had taken to transfer the petitioner. The stand taken by the State is that the petitioner should have 2 filed representation against his transfer through the Civil Surgeon and by bypassing the Civil Surgeon, he had committed a breach for which he could be proceeded against. In the counter affidavit, it is not stated whether the Regional Deputy Director, Gaya did not have the authority to interfere nor is it stated that the Civil Surgeon, at any point of time, moved him for recall of his order. It is, thus, clear that the order of the Regional Deputy Director, setting aside the transfer order, still operates. Now we must look at the impugned order of suspension. The only ground given there is that petitioner had challenged the order of Civil Surgeon and failed to obey the transfer order. He had challenged the authority of the Civil Surgeon and failed to obey his order of transfer. He has approached the superior officer that is the Regional Deputy Director, Health Services, Gaya without going through proper channel and, as such, he was being suspended. In my view, this is nothing but the exercise of power which is vitiated by malice in law. It is apparent that the Civil Surgeon has taken umbrage as against the petitioner for having approached superior officer and got his order set aside. Once the order of the Civil Surgeon was set aside, there was no question of petitioner obeying the order of transfer. It would have been a different matter had the Regional Deputy Director no authority to interfere in the matter and his authority was challenged by the Civil Surgeon before competent authority. Civil Surgeon does not dispute that the Regional Deputy, Health Services is an officer superior in the said cadre. If the Civil Surgeon had any grievance in the matter, it was open to him to move the Director-in-Chief, Health Services in the matter but could not take out his 3 anger or frustration on the petitioner by suspending him or initiating proceeding against him in this matter. Thus, I am left with no option but to set aside the order of suspension, as contained in Annexure-7 and all consequential proceedings thereto. The writ application is, accordingly, allowed. M.E.H./ (Navaniti Prasad Singh)