IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9925 of 2009 ASHOK KUMAR, S/O LATE SAHDEO PRASAD, R/O VILL- NAYA TOLA BALUAHI, P.S. AND DISTRICT-KHAGARIA VERSUS 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, DEPARTMENT OF HEALTH, GOVERNMENT OF BIHAR, NEW SECRETARIAT, BAILEY ROAD, PATNA. 2. THE DIRECTOR-IN-CHIEF, DEPARTMENT OF HEALTH, GOVERNMENT OF BIHAR, NEW SECERTARIAT, BAILEY ROAD, PATNA 3. DISTRICT MAGISTRATE, KHAGARIA 4. THE CIVIL SURGEON CUM CHIEF MEDICAL OFFICER KHAGARIA 5. THE SUPERINTENDENT, SADAR HOSPITAL, KHAGARIA 6. SRI ASHOK KUMAR S/O LATE SAHDEO PRASAD R/O VILL.- NAYATOLA (BALUAHI), P.S. + DISTT.- KHAGARIA WITH CWJC NO. 12904 OF 2009 SMT.SITA PRIYAMBADA, W/O SRI DEVENDRA PRASAD DEO, R/O VILLAGE-SANHAULI, P.S.+ TOWN & DISTRICT-KHAGARIA VERSUS 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, DEPARTMENT OF HEALTH, GOVERNMENT OF BIHAR, NEW SECRETARIAT, BAILEY ROAD, PATNA. 2. THE DIRECTOR-IN-CHIEF, DEPARTMENT OF HEALTH, GOVERNMENT OF BIHAR, NEW SECERTARIAST, BAILEY ROAD, PATNA 3. DISTRICT MAGISTRATE, KHAGARIA 4. THE CIVIL SURGEON CUM CHIEF MEDICAL OFFICER KHAGARIA 5. THE SUPERINTENDENT, SADAR HOSPITAL, KHAGARIA WITH CWJC NO.12919 OF 2009 SMT.MANJU KUMARI, W/O SRI MANOJ KUMAR, R/O MOHALLA-JAI PRAKASH NAGAR, WARD NO.-22, P.O., P.S., TOWN & DISTRICT- KHAGARIA VERSUS 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, DEPARTMENT OF HEALTH, GOVERNMENT OF BIHAR, NEW SECRETARIAT, BAILEY ROAD, PATNA. 2. THE DIRECTOR-IN-CHIEF, DEPARTMENT OF HEALTH, GOVERNMENT OF BIHAR, NEW SECERTARIAST, BAILEY ROAD, PATNA 3. DISTRICT MAGISTRATE, KHAGARIA 4. THE CIVIL SURGEON CUM CHIEF MEDICAL OFFICER KHAGARIA 5. IN-CHARGE MEDICAL OFFICER, PRIMARY HEALTH CENTRE, KHAGARIA 6. SMT. RAJNI KUMARI, NAME OF HUSBAND NOT KNOWN TO THE PETITIONER, A.N.M., ADDITIONAL PRIMARY HEALTH CENTRE, PANCHKHUTTI WITH CWJC NO.5275 OF 2010 1. AWADHESH KUMAR S/O LATE PERMESHWER PRASAD R/O VILL.- MADHUPUR, P.O. + P.S.- ALAULI, DISTT.- KHAGARIA VERSUS 2 1. THE STATE OF BIHAR 2. THE DIRECTOR-IN-CHIEF HEALTH SERVICE, BIHAR, PATNA 3. THE PRINCIPAL SECRETARY DEPARTMENT OF HEALTH & FAMILY WELFARE, GOVERNMENT OF BIHAR, PATNA 4. THE REGIONAL DEPUTY DIRECTOR MUNGER DIVISION, MUNGER 5. THE DISTRICT MAGISTRATE KHAGARIA 6. THE CIVIL SURGEON CUM CHIEF MEDICAL OFFICER KHAGARIA 7. THE SUPERINTENDENT, SADAR HOSPITAL, KHAGARIA 8. SRI ASHOK KUMAR S/O LATE SAHDEO PRASAD R/O VILL.- NAYATOLA (BALUAHI), P.S. + DISTT.- KHAGARIA WITH CWJC NO.1702 OF 2010 RAJENDRA PRASAD S/O LATE JAGDISH PRASAD R/O VILL.- PANK, P.O. KEOTI, P.S. BARBIGHA, DISTT.- SHEIKHPURA VERSUS 1. THE STATE OF BIHAR THROUGH PRINCIPAL SECRETARY, DEPTT. OF HEALTH GOVT. OF BIHAR, NEW SECRETARATE BAILY ROAD, PATNA 2. THE DIRECTOR-IN-CHIEF, DEPTT. OF HEALTH, GOVT. OF BIHAR, NEW SECRETARIATE, BAILY ROAD, PATNA 3. DISTRICT MAGISTRATE, KHAGARIA 4. THE CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, KHAGARIA 5. INCHARGE, MEDICAL OFFICER, PRIMARY HEALTH CENTRE KHAGARIA, DISTT.- KHAGARIA 6. SRI SUDHIR KUMAR DATT S/O KANHAIYA LAL CHAURASIA PHARMASIST, PRIMARY HEALTH CENTRE AT RANI SAKARPURA, P.O. RANISAKARPURA, P.S. GANGAUR, OP., DISTT.- KHAGARIA ************ FOR THE PETITIONER: MR. SHIVENDRA KISHORE, ADV. FOR THE STATE: MR. SUBHASH PD. SINGH, GA-7 ----------- 04. 20.06.2011 In all these Writ Applications, petitioners have challenged the order, contained in Memo No. 847, dated 01.08.2009, issued under the signature of Superintendent, Sadar Hospital, Khagaria and also the order, dated 24.07.2009, contained in Memo No. 752, issued under the signature of District Magistrate, Khagaria, directing the Superintendent, Sadar Hospital, Khagaria to stay the transfer orders, issued in favour of the petitioners, by the then Civil Surgeon, Shri U. C. 3 Mishra. The impugned orders have been challenged by the petitioner on two grounds : - (1) once the transfer order, issued by the competent authority has duly been acted upon by the transferee employees, it can not be stayed, as there nothing remains to be acted upon; and (2) The Civil Surgeon of the district, being head of the Health Department in the district and authorized for passing orders for transfer of employees, working under him, the District Magistrate being head of the district administration, has no authority to either quash, cancel or stay any order passed by the Civil Surgeon. All petitioners were transferred by the then Civil Surgeon, Shri (Dr.) U. C. Mishra. Petitioner in C.W.J.C. No. 9925 of 2009, Ashok Kumar was transferred from Primary Health Centre, Rani Sakarpura, Khagaria to Sadar Hopsital Khagaria, as Store Keeper. Shri Awadhesh Kumar, petitioner in C.W.J.C. No. 5275 of 2010 was transferred from Sadar Hospital, Khagaria, where he was on deputation, to Primary Health Centre, Rani Sakerpura. Awadhesh Kumar has challenged the transfer order, issued by the Civil Surgeon on the 4 ground that it was pre-mature and being violative of the Circulars of the Department, relating to transfer of an employee. He should not have been transferred to Primary Health Centre, Rani Sakerpura. However, now, he is not pressing his transfer order, whereby he was transferred from Sadar Hospital, Khagaria to Primary Health Centre, Rani Sakerpura, for the reason that he has joined at the post and now settled there. Only prayer, which is made by this petitioner, relates to payment of his salary for the period in between 01.08.2009 to 19.08.2009, when the order, contained in Memo No. 847, dated 01.08.2009 was stayed. The Respondents are directed to make payment of salary to Awadhesh Kumar for the period, for which his salary has been withheld. Petitioners in all other cases have challenged the impugned orders, contained in Memo No. 847, dated 01.08.2009 as well as the order, dated 24.07.2009, contained in Memo No. 752. Counsel for the petitioner in support of his contention, challenging the impugned order, dated 01.08.2009, Memo No. 847, has placed reliance on a decision reported in 2000 (2) PLJR 332 (Smt. Jyotsna Kumari Vrs. State of Bihar & Ors.). In para 12 of this 5 decision, in the similar facts and circumstances of the case, it has been held that once the order of transfer is implemented, there nothing remains to be stayed. All petitioners in compliance of the transfer order, dated 29.07.2009, contained in Memo No. 1489, had joined at their transferred place. Their submission is that once the transfer order, issued in their favour was duly implemented, they joined at their transferred place, the subsequent order, issued by the Superintendent, Sadar Hospital, Khagaria, contained in Memo No. 847, dated 01.08.2009 has no relevance. There is nothing to be stayed. All transferred employees had already joined and in this view of the matter, the order, dated 01.08.2009 was completely illegal and arbitrary. I find merit in submission of the petitioner. The order of transfer once implemented, could not have been stayed. The competent authority could have passed another order of transfer or cancel it, but so far the Superintendent, Sadar Hospital, Khagaria is concerned he neither has jurisdiction to pass such an order nor there anything has remained to be implemented. Since, nothing remain to be stayed, in this view of the matter, the Annexure-1 to C.W.J.C. No. 9925 of 2009, dated 01.08.2009, contained in Memo No. 847, which 6 is impugned order in all other cases are quashed. In support of his second contention relating to jurisdiction of the District Magistrate in issuing a direction to stay the transfer order, issued by the Civil Surgeon, a competent authority, petitioner has placed reliance on an unreported decision, annexed as Annexure-12 in C.W.J.C. No. 9925 of 2009. In this judgment, the jurisdiction of a District Magistrate and the Civil Surgeon has been considered and decided. It has been held that on the administrative side, the District Magistrate is head of his own establishment; the Civil Surgeon of the district is head of his establishment; and the District Judge of his own establishment. There is no direct interference of one establishment in the functioning of other establishment. They are independent for the aforesaid purpose. The District Magistrate, as such, has no right for directing to stay the transfer order, issued by the Civil Surgeon, who is the head of the establishment, i.e., the Health Department in the district, even, in case there was an irregularity. For that a request could have been made by the District Magistrate and only the competent authority, i.e., the Civil Surgeon himself could have passed such order. Since the 7 Superintendent, Sadar Hospital, Khagaria has issued the stay order, completely on the direction of the District Magistrate, who is not the competent authority for passing such order, the order dated 24.07.2009, contained in Memo No. 752 is also fit to be quashed. Accordingly, both the orders are quashed. All petitioners have duly joined at their transferred place and in view of stay order, they are continuing there. They shall continue at their respective transferred place, till the date the competent authority i.e., Civil Surgeon of the district again passes any transfer order, transferring them to any other place. With the aforesaid observations, All these Writ Applications are allowed. SKM (Mridula Mishra, J.)