IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4321 of 2009 DR.(MRS.)MALTI JHA Versus THE STATE OF BIHAR & ORS ----------- 2. 08.04.2009 Heard leaned Counsel for the petitioner and the learned Counsel for the State. In view of nature of the order to be passed this Court does not consider it necessary at this stage to issue notice to respondent no. 7, as this Court proposes to safeguard his interest appropriately in the order. Learned Counsel for the petitioner submits that she is the senior most Medical Officer in the Primary Health Centre, Meerganj, Uchkagaon at Gopalganj. The Senior Most Medical Officer is appointed as Incharge Medical Officer with additional powers of drawing and disbursing. He next submits that Incharge Medical Officer exercises supervisory and administrative authority over other Medical Officers. For this reason seniority is the criteria for appointment as an Incharge. He next submits that there is no proceeding pending against her much less any order of punishment to debar her from consideration for appointment as Incharge Medical Officer. Respondent no. 7 who is junior to her in the gradation list, the petitioner standing at serial 2767 and respondent no. 7 at 6765, has been appointed as Incharge Medical Officer. Injustice shall be done to the petitioner by requiring her to report on administrative side and subject her to the administrative control of a junior in the gradation list. That the petitioner was not 2 averse to acceptance of an order of transfer also to avoid being compelled her to work under a junior. Counsel for the State submits that he is not in a position to make submission without instructions and filing a counter affidavit. There is no material on record to show nature of administrative superiority of the Incharge Medical Officer over a Medical Officer. Learned Counsel has fairly acknowledged that there is no change in the salary in pursuance of such in-charge arrangement. In absence of necessary materials with regard to the superior administrative powers of the Incharge Medical Officer exercising administrative control over other Medical Officers making them subject to the Incharge in the day to day functioning, this Court finds it difficult to adjudicate on the issue that the petitioner is being asked to work under a junior person who shall exercise administrative control over her, thus causing her injustice. It is settled law that making a person senior to work in subjugation on the administrative side to a person junior is causing out injustice to the person senior in service. It is lastly submitted that the order is wholly without jurisdiction inasmuch as that the District Magistrate has no administrative control and is not the superior authority of the petitioner, who belongs to the medical cadre. The writ application appears to be raising only an administrative issue at this stage. At best it may require 3 consideration of the government procedure with regard to assignment of the position of an Incharge from amongst Medical officers. This Court is however satisfied that the District Magistrate certainly has no jurisdiction to interfere with the services of the petitioner or pass any orders with regard to whether she should be deprived of the powers of Incharge Medical Officer granted to her earlier by the Civil Surgeon. The Civil Surgeon cannot act on the direction of the District Magistrate, an authority wholly without jurisdiction in the matter. The matter is therefore remanded to respondent no. 2 to take a fresh decision in accordance with the rules/regulations/administrative instructions on the issue of appointment as Incharge Medical Officer, within a maximum period of two weeks from the date of receipt and/or production of a copy of this order. The respondent no. 2 while taking such fresh decision in accordance with law shall pay no heed to the orders of the District Magistrate. The issue of injustice by asking a person senior in rank to subject himself to the jurisdiction of a person lesser in rank shall also be considered appropriately. While taking such fresh decision respondent no. 2 shall adequately ensure notice to respondent no. 7 also before passing his final order. The writ application stands disposed off. Snkumar/- (Navin Sinha,J.)