(1) wp2585-2586-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2585 OF 2011 Suresh s/o Vishwanath Gholap, Age : 38 years, Occu. Service as Taluka Health Officer, Sangamner, R/o Akolkar Sankul, Near Divekar Gas Agency, Sangamner, Tq. Sangamner, Dist. Ahmednagar PETITIONER VERSUS 1. The State of Maharashtra, through its Principal Secretary, Public Health Department, Mantralaya, Mumbai - 32 2. The Director General of Health Services, Aarogya Bhavan, St. George Hospital Compound, Mumbai. 3. The Deputy Director of Health Services, Nasik Circle, Nasik. 4. The Chief Executive Officer, Zilla Parishad, Ahmednagar. 5. Mohan s/o Popatrao Shinde, Age : 39 years, Occu. Service as Medical Officer, Primary Health Centre, Deothan, Tq. Akole, Dist. Ahmednagar. RESPONDENTS WITH WRIT PETITION NO. 2586 OF 2011 (2) wp2585-2586-11 Sunil s/o Vitthalrao Borade, Age : 34 years, Occu. Service as Taluka Health Officer, Karjat, R/o Mahesh Nagar, Karjat, Taluka Karjat, Dist. Ahmednagar. PETITIONER VERSUS 1. The State of Maharashtra, through its Principal Secretary, Public Health Department, Mantralaya, Mumbai - 32 2. The Director General of Health Services, Aarogya Bhavan, St. George Hospital Compound, Mumbai. 3. The Deputy Director of Health Services, Nasik Circle, Nasik. 4. The Chief Executive Officer, Zilla Parishad, Ahmednagar. 5. Bhausaheb s/o Shankar Bhondve, Age : 51 years, Occu. Service, PHC, Manik Dawandi, Tq. Karjat, District Ahmednagar. RESPONDENTS .... Mr. R.N. Dhorde, advocate holding for Mr. V.R. Dhorde, advocate for the petitioner in both the writ petitions. Mr. S.K. Kadam, A.G.P. for the respondent/State in both the writ petitions. Mr. S.T. Shelke, advocate for respondent No. 4 in both the writ petitions. Mr. J.S. Deshmukh, advocate for respondent No. 5 in both the writ petitions. .... CORAM : D.B. BHOSALE & M.T. JOSHI, JJ. (3) wp2585-2586-11 DATE OF JUDGEMENT RESERVED : 1st APRIL, 2011 DATE OF JUDGEMENT PRONOUNCED: 8th APRIL, 2011 JUDGEMENT (PER : M.T. JOSHI, J.) : 1. Rule. Rule made returnable forthwith and heard finally by consent of learned counsel for the parties. 2. In both the present writ petitions, the dispute concerns a common order of posting issued by respondent No. 4 - Chief Executive Officer, Zilla Parishad, Ahmednagar whereby respondent No. 5 in both the petitions, namely, Mohan Popatrao Shinde and Bhausaheb Shankar Bhondve were shifted from post of Taluka Health Officer of Panchayat Samiti, Sangamner and Karjat, respectively, and in their places, the present petitioners i.e. Suresh Vishwanath Gholap and Sunil Vitthalrao Borade were directed to take charge, respectively as Taluka Health Officer of Sangamner and Karjat. The said order was challenged before the Maharashtra Administrative Tribunal, Mumbai, (4) wp2585-2586-11 Bench at Aurangabad, vide Original Application Nos. 692/2010 and 693/2010. The learned Tribunal, by separate orders dated 23rd March, 2011, upheld the challenge and directed for reinstatement of respondents No. 5 in both the writ petitions at respective places as Taluka Health Officers. 3. In the circumstances, in both the present petitions, the petitioners are praying for quashing and setting aside the said judgement and orders. 4. The submissions of the parties and the arguments of learned counsel for the parties revolve around the interpretation of Government Resolution dated 16th May, 2007 (hereinafter referred to as "the G.R."), issued by the Principal Secretary of Public Health Department and the Circular dated 6th June, 2009 ("the Circular", for short), issued by respondent No. 2 (5) wp2585-2586-11 - Director General of Health Services, Mumbai. 5. The G.R. as amended from time to time shows that in order to implement various schemes of the Government, concerning the health of the public in general, it was resolved to appoint full time Taluka Health Officers from amongst the Medical Officers of the Primary Health Centres. The guidelines are given in the G.R. that while appointing Taluka Health Officer, preference should be given to a candidate sponsored by the Maharashtra Public Service Commission (M.P.S.C.) and the seniority and the final decision in this respect is to be taken by the Chief Executive Officer of the Zilla Parishad. 6. The Circular issued by respondent No. 2, dated 6th June, 2009 is in the nature of issuing guidelines to the Chief Executive Officers of the Zilla Parishads. It is advised under the said Circular that the appointment as Taluka Health (6) wp2585-2586-11 Officer should be made of Medical Officer of the Primary Health Centre, who besides being sponsored by the Maharashtra Public Service Commission should be D.B.H. and M.D. The incumbent should have work experience of three years in rural area. As far as possible, he should be senior most, holding M.B.B.S. educational qualification. Further, he should be trained in carrying female family planning operations and should be competent to carry post- mortem examinations. It was further directed that the Medical Officer should be intimated that their respective posting as Taluka Health Officer would not be a permanent posting and that the same would be liable to be changed after making assessment of their day-today work. 7. Respondent No. 5 in both the writ petitions were posted as Taluka Health Officers of Sangamner and Akole, respectively by the Chief Executive Officer, vide common order dated 5th (7) wp2585-2586-11 February, 2009. However, vide order dated 9th August, 2010, both of them were shifted from the said posts, respectively, to the Primary Health Centre, Deothan, Taluka Akole and Primary Health Centre, Manik-Dawandi, Tq. Pathardi, respectively and in their places, the present petitioners were posted as Taluka Health Officers. In the circumstances, both these respondents challenged the said order before the Maharashtra Administrative Tribunal as detailed supra. The learned Tribunal, for the reasons to be enumerated later, had upheld the challenge. Therefore, both the orders are impugned in the present writ petitions. 8. Mr. R.N. Dhorde, learned counsel for the petitioner in both the petitions, submitted as under :- That, the orders would clearly show that the postings were temporary postings and liable to be changed at any time. The learned Tribunal (8) wp2585-2586-11 did not correctly interpret the contents of the G.R. and the Circular and gave primacy to the G.R. relegating the Circular to insignificance. Further, respondent No. 5 in writ petition No. 2585/2010, is not M.B.B.S. having no experience of carrying tubuctomy operation or to conduct post-mortem examination. Further, both the respondents were shifted from the respective post of Taluka Health Officer in view of serious complaints against them. Under the circumstances, Mr. Dhorde submitted that the learned Tribunal having not correctly appreciated all these aspects, the orders be quashed and set aside. 9. Learned counsel for the respective respondent No. 5 in both the petitions supported the reasoning of the learned Tribunal. The counsel for respondent No. 5 - Chief Executive Officer submitted that the authority of the Chief Executive Officer as per the G.R. is final in regard to the posting of the Medical Officer as (9) wp2585-2586-11 Taluka Health Officer and hence, he submitted that the learned Tribunal ought not to have interfered in the discretion exercised by the Chief Executive Officer in posting or re-posting of the petitioners and the respondents No. 5 in both the petitions. 10. Mr. J.S. Deshmukh, learned counsel for respondent No. 5 in both the petitions, has drawn the attention of this Court to the contents of the affidavit which was filed by the Administrative Officer of Director of Health, in Original Application No. 1456/2009, filed at the principal seat of Maharashtra Administrative Tribunal at Bombay, as has been re-produced in the present impugned order of the Maharashtra Administrative Tribunal. The affidavit clarifies that the Circular issued by the subordinate officer i.e. Director is advisory in nature. 11. It is an admitted fact that the (10) wp2585-2586-11 petitioners and respondent No. 5 in writ petition No. 2585/2011 are not the candidates sponsored by the Maharashtra Public Service Commission and respondent No. 5 - Mohan Shinde is the senior amongst them. It is also admitted fact that he has made an application on 14th October, 2008 to the District Health Officer and thereafter, he was posted as Taluka Health Officer of Sangamner, vide order dated 5th February, 2009. Thereafter, he was suddenly shifted from the said post vide order dated 6th August, 2010 which was impugned before the Maharashtra Administrative Tribunal. 12. In writ petition No. 2586/2011, respondent No. 5 who was posted as Taluka Health Officer at Akole, vide the same order dated 5th February, 2009 and was also suddenly shifted vide the present disputed order is admittedly a M.P.S.C. sponsored candidate. It is thus clear that in both the cases, respondent No. 5 were posted just one year and six months back of the (11) wp2585-2586-11 passing of the next of the order by the Chief Executive Officer. Time and again, attention of this Court was brought to the complaints (not related to day-to-day performance as provided by the G.R.), said to have been made by some citizen against respective respondent No. 5. It was, however, lastly contended that the transfer/ shifting from the post cannot be a punitive action. 13. Learned Maharashtra Administrative Tribunal, in view of the affidavit filed in identical proceeding with Maharashtra Administrative Tribunal, Mumbai by the Administrative Officer of respondent No. 2 - Director of Heath, had rightly interpreted the respondent No.2's Circular as merely advisory. 14. Much stress was given on the wording of the orders that the posting was temporary. However, it does not mean that there can be (12) wp2585-2586-11 shifting/transfer of the incumbent midterm without any valid reasons. 15. In the circumstances, we do not find any illegality or impropriety in the impugned orders passed by the Maharashtra Administrative Tribunal, Mumbai, Bench at Aurangabad. Both the writ petitions are, therefore, dismissed. The Rule is discharged accordingly. [M.T. JOSHI, J.] [D.B. BHOSALE, J.] NPJ/wp2585-2586-11