IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14937 of 2011 Dr. Pratibha Kumari, wife of Dr.Amit Kumar Mishra, resident of Flat No. 303/A, Lilawarty Apartment, P.O. & P.S. Patliputra, District Patna at present working and posted Ayush Ayurvedic Doctor in Additional Primary Health Centre, Sakraicha (Phulwari Sharif), Patna----------------------petitioner Versus 1. The State of Bihar through the Principal Secretary, Health- Cum-Executive Director, State Health Society, Bihar, Patna. 2. The Secretary, Health-Cum-Executive Director, State Health Society, Bihar, Patna. 3. The District Magistrate-Cum-Chairman, District Health Society, Patna. 4. The Civil Surgeon-Cum-Member Secretary, District Health Society, Patna. 5. The State Health Society through the Executive Director, Parivar Kalyan Bhawan, Patna-800004. 6. The I/C Medical Officer, Primary Health Centre, Phulwari Sharif, Patna. 7. The Civil Surgeon-Cum-Member Secretary, District Health Society, Aurangabad---------------------------------respondents ---------------------------------- with Civil Writ Jurisdiction Case No.19713 of 2011 Arti Kumari W/O Sri Mikesh Kumar Sinha R/O Saguna More, Danapur, P.S.- Danapur, District- Patna--------------petitioner Versus 1. The State of Bihar through Secretary Health Cum Executive Director, State Health Society, Bihar Parivar Kalyan Bhawan, Patna-14 2. The Secretary, Health cum Executive Director State Health Society, Bihar Parivar Kalyan Bhawan, Patna-14 3. The District Officer cum Chairman, District Health Society, Bihar, Patna 4. The Civil Surgeon cum Member Secretary District Health Society, Bihar, Patna 5. The Divisional Deputy Director, Health Services, Bihar, Patna 6. The District Desi Medical Officer Cum District Programme Officer District Health Society, Bihar, Patna 7. The Civil Surgeon cum Member Secretary District Health 2 Society, Gaya 8. The In Charge Medical Officer, Primary Health Centre, Maner, Patna---------------------------------------------respondents -------- For the petitioners in both the cases:M/S Krishna Murari, Sr.Advocate Harish Kumar, Pankaj Kumar Sinha, K.K.Jha, Advocates For the State Health Society :Mr.K.K.Sinha, Advoate For the State :Mr.Sunil Kumar, AC to G.P.23 Mr.Atul Kumar, AC to AAG 14 ------- 10 21.12.2011 I.A.No.8840 of 2011 in C.W.J.C.No.14937/2011 The interlocutory application has been filed for addition of prayer so as to challenge the office order dated 7.12.2011 issued under the signature of the State Programme Officer (AYUSH) by which the representation of the petitioner has been rejected. In the facts and circumstances of the case, the prayer for amendment by addition of relief is allowed. I.A.No.8840 of 2011 is, accordingly, disposed of. Both the writ applications raise common issues and accordingly they have been heard together and with the consent of the parties are being disposed of at the stage of admission itself by this common order. In both the writ applications the petitioners have 3 challenged the order dated 17.8.2011 by which the petitioner Dr.Pratibha Kumari has been transferred from Patna to Aurangabad and the petitioner Arti Kumari to Gaya. The petitioners were appointed as AYUSH Ayurvedic doctor on contract basis after successfully competing in the competitive examination and were posted at Patna. The husband of petitioner Dr.Pratibha Kumari is a Senior Resident in IGIMS, Sheikhpura, Patna, which fact she claims to have disclosed at the time of counseling and accordingly she was posted in Additional Primary Health Centre, Sakraicha (Phulwari Sharif), Patna. The petitioner Arti Kumari also claims to have produced the required documents at the time of her counseling and disclosed that her husband is posted in Income Tax Office at Patna and accordingly she was posted in Patna district in the Additional Primary Health Centre, Gopalpur (Maner) and she had joined and was discharging her duties. Subsequently in the name of rationalization on the ground of husband-wife to be posted at the same place the petitioners were shifted out from Patna. A counter affidavit has been filed in the case of 4 Dr.Pratibha Kumari only in which the stand of the respondent State Health Society is that the petitioner Dr.Pratibha Kumari had not disclosed that her husband was posted at Patna and the statements to that extent have been denied. It is their stand that the cases of only such persons were considered at the time of rationalization who had made a request for being posted at the same place on the ground of husband-wife policy and accordingly those who had filed representations were considered and posted at the same place as their spouse but the petitioners did not file any such representation before the authorities and thus their cases could not be considered. The further stand is that the petitioners were posted at Patna randomly. Learned counsel for the petitioners in reply submits that since the petitioners were already posted at Patna where their husbands were also posted there was no occasion for them to file representation before the authorities. It is further submitted that before the rationalization the petitioners were never informed to again exercise any such option on the ground of husband-wife policy and the entire exercise was carried out without the knowledge of the petitioners and thus there was no 5 occasion for them to file representation to exercise the option on the ground of husband-wife policy. It is submitted that the petitioner Dr.Pratibha Kumari was at Serial No.179 at merit position and the petitioner Arti Kumari was at Serial No.91, whereas the two other candidates whose Serial Nos. being 211 and 244 in the merit position have been given posting at Patna, which is unfair to the petitioners who are similarly situated as their husbands’ posting is at Patna and they are also higher in the merit list and so they ought to have been posted at the place of their husbands’ posting. On a consideration of the aforesaid facts and circumstances, this Court finds sufficient force in the submission of learned counsels for the petitioners. The issue as to whether the petitioners were posted at Patna on the ground of their disclosure that their respective husbands were posted at Patna or the same was done randomly is not at all relevant in the present matter. The question is whether the petitioners were informed at any time before the rationalization exercise took place to exercise any such option on the ground of husband-wife policy or to make any such disclosure. The stand of the respondents that they 6 did not file any representation does not take into consideration the fact that the petitioners had no occasion to represent at all since they were already posted at Patna and were of the view that the same has been done on the ground that their husbands are also posted at Patna. Thus, the petitioners could not have been shifted as they were much higher in the merit list and their respective husbands were also posted at Patna. The rationalization exercise subsequently ought to have been brought to their knowledge either specifically or by general notice. No such thing appears to have been done as per the materials available on the record. Thus, the order dated 17.8.2011 so far as it relates to transfer of the two petitioners from Patna to Aurangabad and Gaya respectively cannot stand and it is accordingly quashed. All orders consequent upon the said order dated 17.8.2011 also stand quashed and the petitioners shall be entitled to be posted at their original place of posting. The writ applications are thus allowed in the aforesaid terms. Spal/ (Ramesh Kumar Datta, J.) 7