J.K.Tandon, J. - (1.) The petitioner in this case is one Dr. Prem Behari Lal. The relevant facts minus unnecessary details are that he was appointed by the Government on the post of Anaesthetist at the State hospitals at Kanpur which are Ursla Horsman Memorial Hospital and Sri Lajpat Rai Hospital. This was done in 1951 on a scale of 200-10-250 EB 10-310 EB 14-450. Prior to his appointment on this post the Public Service Commission was in the usual course asked to make the selection. The notification issued by the Public Service Commission inviting applications from prospective candidates has been filed as Anncxure 4 to the main affidavit of the petitioner. In this document various matters which it was necessary to notify to the candidates were also mentioned but the one which is directly relevant here was as follows : "Each Anaesthetist will be under the direct control of the Civil Surgeon of the District concerned and will administer anaesthetics to the patients at the Government hospitals in the city under the directions of the Civil Surgeon. He will not be attached to any particular hospital but will serve all the State hospitals in the city and will aiso train medical officers in the art of administrating anaesthetics." Here it may be mentioned that the advertisement issued by the Public Service Commission was for two posts of Anaesthetists, one each for Allahabad and Kanpur. The petitioner was ultimately selected by the Public Service Commission for the post at Kanpur and recommended accordingly to the State Government. Subsequent to this recommendation the Government made the appointment of the petitioner. There are two such orders, one issued in November 1950 in which there were certain terms which it seems were not acceptable to the petitioner. The latter therefore represented against them to the State Government which modified the earlier terms and issued a fresh appointment letter on March 31, 1951. There was, it appears, some further difficulty about the terms which were ultimately modified and communicated to the petitioner on September 1, 1951 by letter, Annexure 3. So far as the appointment of the petitioner went, it took place under the order of the Governor, copy whereof is Annexure II. The relevant portion of this order may be reproduced here and is : "In supersession of this office order No. II F 174 E/4713683, dated 4-12-1950 the Governor has subject to the approval of the Public Service Commission U. P. Allahabad been pleased to appoint Dr. Prem Behari Lal Anaesthetist of the Medical College and Associated Hospitals Lucknow to the post of an Anaesthetist at the State Hospitals at Kanpur in the scale of pay of Rs. 220-10-250 EB 10-310 EB 14-450 subject to the following terms and conditions:" The order then describes certain conditions including that he shall be on probation for a period of one year. What is significant, however, is that no mention was made in this order about his liability for transfer from the post to which he had been appointed. The petitioner continued to serve on this post thereafter and was ultimately confirmed with effect from 10-9-1955. In the confirmation order sent to him it was once again stated that he had been confirmed as an Anaesthetist Ursla Horsman Memorial Hospital Kanpur. It further appeared that after he had been appointed the petitioner represented to the State Government for declaring his post to belong to one or the other State Medical Services. The reply that he got, however, was that it was an ex-cadre post meaning thereby that he could not be placed on the cadre of one or the other services. In October 1957 he was served with an order Annexure 9 transferring him from his the then post at Kanpur to S.P. Gupta Hospital at Varanasi. This was issued under the signatures of the Additional Director of Medical Services. On receipt of the above order the petitioner represented to the Director that inasmuch as his appointment was to a specified post, namely, as Anaesthetist to the Ursla Horsman Memorial Hospital at Kanpur, he was not liable to transfer. But while maintaining this position he also offered that in case he was placed on the cadre of one or the other services he had no objection to moving to Varanasi : The Director of Medical Services, however, insisted that he should make over charge of his duties at Kanpur and proceed to Varanasi. There were, it appears, one or more further representations. Ultimately as the petitioner was not willing to proceed to Varanasi the Director suspended him by his letter dated 28-1-1958. The suspension order took effect from the following day. The reason assigned in this order for suspending the petitioner was that he had displayed the spirit of defiance of the order and disobedience. Since then he is under suspension. The present petition was then filed by him under Article 226 of the Constitution impugning the order dated 19-1-1958, transferring him to Varanasi and the order of suspension communicated to him on 28-1-1958. The grounds urged are that he was appointed to the particular post at Kanpur and as such was not under terms of his employment liable to transfer. The alleged charge of disobedience is also disputed on the same ground. In the case of the suspension order his contention is that the Director of Medical and Health Services not being his appointing authority had no jurisdiction to make the order.
(2.) It may be stated at the outset that the Standing Counsel has conceded that the petitioner's appointment was made by the Governor and not by the Director of Medical and Health Services. It also has not been challenged that the suspension order was made in this case by the Director aforesaid. As regards other facts also there does not appear any dispute, inasmuch as the Standing counsel has not pointed out any material on the record to support that the petitioner's appointment was subject to liability for transfer from the post to which he had been appointed. The terms of appointment do not state any such liability nor has any other document been produced to show that it was thereby incorporated in them or that it existed by virtue of it. Reliance in that behalf has, however, been placed on Rule 15 of the Fundamental Rules which is that the State Government may transfer a Government servant from one post to another.
(3.) The facts which may, therefore, be taken as not disputed are that the petitioner was appointed by the Governor, that his appointment was lo the post of the Anesthetist attached to the State Hospitals at Kanpur, that he was confirmed in that post ultimately and that the appointment order imposed no express obligation for transfer from that post. The other facts which too, are not disputed are that the post does not belong to any regular service or other cadre but is an individual post attached to the two hospitals at Kanpur.;