RAKESH SHARMA, J. - (1.) THE controversy in all these writ petitions relate to the posting as Chief Pharmacist at CMSD Store, Azamgarh between Hriday Nand Singh, the petitioner in writ petition No. 48167 of 2008 and writ petition No. 56790 and Ram Awadh Jaiswal, the petitioner in writ petition No. 51829 of 2008. The writ petition No. 48167 of 2008 has been reported by the Stamp Reporter to be cognizable by Single Judge. Counsel for the parties agree that this petition may also be decided by Division Bench as the dispute involved relates to transfer/posting between the same parties.
(2.) IT appears that H.N. Singh was earlier posted as Chief Pharmacist at Ballia. He was placed under suspension on account of disciplinary proceedings. It appears that the disciplinary proceedings culminated in favour of H.N. Singh and by an order of the Director General, Medical & Health Services, U.P. Lucknow dated 27.8.2008 H.N. Singh was reinstated and was posted at CMSD Store Azamgarh on the post of Chief Pharmacist. Subsequently an order dated 3.9.2008 was passed by the Chief Medical Officer, Azamgarh, transferring H.N. Singh from CMSD Store Azamgarh to the Primary Health Centre Sathiyaon, District Azamgarh. The order dated 3.9.2008 of the Chief Medical Officer transferring H.N. Singh was challenged by him in writ petition No. 48167 of 2008 in which counter and rejoinder affidavits have been exchanged. On the other hand, the order dated 27.8.2008 of the Director General, posting the petitioner H.N. Singh as Chief Pharmacist, at CMSD Store, Azamgarh was challenged by Ram Awadh Jaiswal in writ petition No. 51829 of 2008. The prayer in that writ petition was not for quashing of the order dated 27.8.2008 but it was prayed that respondents be restrained from interfering with his working on the post of Chief Pharmacist at CMSD Store, Azamgarh. According to the averments made in writ petition No. 51829 of 2008 filed by Ram Awadh Jaiswal, the post of Chief Pharmacist at CMSD Store, Azamgarh was not vacant, as the said post was occupied by him on the basis of order of the Chief Medical Officer dated 25.6.2008 transferring him from Primary Health Centre, Sathiyaon to CMSD Store, Azamgarh and therefore the Director General could not have passed the order dated 27.8.2008. In writ petition No. 51829 of 2008, an interim order was passed staying the operation of the order dated 27.8.2008 in so far as it directs posting of H.N. Singh as Chief Pharmacist, CMSD Store, Azamgarh. Later on another order was passed by the Director General dated 21.10.2008 by which H.N. Singh has been transferred from Azamgarh to Budaun. This order indicates that it has been passed on administrative ground at the instance of the Chief Medical Officer who had made some allegations regarding conduct of H.N. Singh. We have heard Sri Somesh Khare counsel for the petitioner Hriday Nand Singh and Sri P.K. Mishra counsel for petitioner Ram Awadh Jaiswal and the learned standing counsel for the respondents.
(3.) THE contention of Sri Somesh Khare, counsel for H.N. Singh is that the order dated 27.8.2008 was an order issued by the Director General and he would override the order passed by the Chief Medical Officer dated 25.6.2008 by which Ram Awadh Jaiswal was posted from Primary Health Centre, Sathiyaon, Azamgarh to CMSD Store, Azamgarh and therefore the case of Ram Awadh Jaiswal that the post of Chief Pharmacist was not available at CMSD Store, Azamgarh is not correct. As regards transfer order dated 21.10.2008 it was submitted by Sri Khare counsel for H.N. Singh that the said order is malafide and has been passed on the recommendation of Chief Medical Officer, Azamgarh who was in collusion with Ram Awadh Jaiswal and the complaint made by the Chief Medical Officer regarding conduct of H.N. Singh was false. It was also submitted by Sri Khare that posting of Ram Awadh Jaiswal as Chief Pharmacist, Primary Health Centre at Sathiyaon, Azamgarh was on the basis of an order passed by the Director General and the Chief Medical Officer could not have altered the arrangement. Sri P.K. Mishra, counsel for Ram Awadh Jaiswal on the other hand submitted that no doubt that the petitioner Ram Awadh Jaiswal was posted Chief Pharmacist, Primary Health Centre at Sathiyaon, Azamgarh but later on by the order of the Chief Medical Officer, he was posted at CMSD Store, Azamgarh and that the Director General was not aware of the fact the post of Chief Pharmacist at CMSD Store, Azamgarh was already occupied by Ram Awadh Jaiswal and the order posting H.N. Singh at CMSD Store, Azamgarh was passed under misconception.;