B.S.Chauhan, J. - (1.) This special appeal has been preferred against the orders dated 17.5.2004 and 30.4.2004, passed by the learned Single Judge while dealing with the Contempt Petition No. 820 of 2002, Rajesh Kumar Srivastava v. A.P. Verma and Ors., by which earlier order dated 28.1.2004, passed in the same contempt petition is being endorced directing the State Government to frame the transfer policy and implement the same for the Doctors,
(2.) The facts and circumstances giving rise to this case are that the Hon'ble Apex Court decided the public interest litigation D.K. Joshi v. State 'of U.P. and Ors., (2000) 5 SCC 80, issuing certain directions to the State Government to restrain the unqualified/unregistered Doctors to indulge in any kind of medical practice. Subsequently, a Contempt Petition No. 292 of 2002, Rajesh Kumar Srivastava v. A.P. Verma, Chief Secretary, V.P., was filed before the Hon'ble Apex Court raising the grievance that the directions issued by their Lordships in the said judgment were not being complied with at all and the State Government was not taking any steps to \ensure the compliance of the same. The Hon'ble Supreme Court vide its order dated 8.10.2001 did not entertain the petition, rather gave liberty to the petitioner therein to file the petition before this Court and in pursuance of the same, the said contempt petition has been filed herein and entertained by this Court. In order to prevent the quacks to spoil the life of the members of the society, a large number of directions have been issued from time to time by this Court. In order to check the menace of private practice and running their own Nursing Homes or working in other Nursing Homes by the Government Doctors at the cost of public, in the said case, on 28.1.2004, amongst others, the following directions were also issued : "The Principal Secretary, Medical Health and Family Welfare, it is directed, to ensure that no Medical Officer in the Government Service is posted beyond three years in any District, and that air para medical staff serving in the Primary Health Centre/Community Health Centre/District Hospitals and other hospitals run by Government of U.P. for more than five years shall be transferred from that centre/hospital Any Doctor in employment of State Government offering their services to the unauthorised medical practitioners shall face immediate disciplinary action by the State Government, and shall be prosecuted for aiding and abetting such unauthorised practice."
(3.) Being aggrieved, a large number of special appeals have been preferred against the same contending that a Court while entertaining a contempt petition, cannot issue this kind of direction. More so, the petition is limited only to prevent the unqualified and unregistered persons to indulge in medical practice and issuing such a direction is beyond the competence of the Contempt Court. In a special appeal, a Division Bench of this Court stayed the operation of the above said direction. However, in the Special Appeal No. 320 of 2004, Dr. Ravindra Kumar Goel and Ors. v. State of U.P. and Ors., decided on 27th April, 2004, another Division Bench of this Court held that the transfer is a condition of service. It is a matter between employer and employee and the Court generally does not interfere in such matters unless the transfer of employee is found to be in violation of the statutory provision or held to have been made mala fide. But, while dealing with the issue of competence of the Contempt Court to issue such a direction, the Court held as under: "In our opinion, it is correct to say that the principles of transfer are policy matters, and they should ordinarily be decided by the State Government and not by this Court. Hence we modify direction No. 8 contained in the judgment of the learned Single Judge, and we hold that this directive shall be treated as a recommendation rather than a binding directive on the State Government.";