S.N. Jha, J.@mdashThis appeal under Order 43 Rule 1(r) of the CPC arises from an order holding the Appellant guilty of disobedience of an order of injunction in a proceeding under Order 39 Rule 2A of the Code, and directing attachment of his property. The relevant facts are as follows:
2. The sole Respondent Dr. Uma Shankar Pandey filed Title Suit No. 222 of 1992 in the Court of Munsif 1st, Siwan on 22.6.92 challenging the order of his transfer from the post of Pathologist, Sadar Hospital, Siwan. He applied for temporary injunction. The prayer for injunction was rejected on 23.9.92. He preferred appeal (M.A. 50 of 1992). Sri R.A. Singh, VIth Addl. District Judge, Siwan vide his judgment and order dated 1.3.93 held that the Plaintiff had got prima facie case for injunction, balance of convenience also lay in his favour and he will suffer irreparable injury if injunction was not issued. He accordingly set aside the order of the Munsif dated 23.9.92 and directed the Defendant to allow the Plaintiff to join his duty as Pathologist in the Sadar Hospital, Siwan and not to interfere with his functioning as Pathologist in the Sadar Hospital till disposal of the suit.
3. The Respondent filed application alleging disobedience of the above said order by the Appellant. According to him, he had joined the post of Pathologist in Sadar Hospital, Siwan pursuant to the aforesaid order of the Court on 3.3.93, and started performing his duties. However, the Appellant was creating hindrance in his functioning. It was stated that his name was left out in the attendance register at the instance of the Appellant. He was also not getting his salary. It may be mentioned here that the Appellant at the relevant time was posted as Civil Surgeon, Siwan. He was also the Superintendent of the Sadar Hospital, Siwan.
4. The aforesaid application of the Respondent was registered as Misc. Case. No. 7 of 1993 under Order 39, Rule 2A of the Code. The Appellant filed his rejoinder. The parties adduced evidence. By the impugned order, as indicated at the outset, the Court below held that the Appellant was guilty of disobedience. The Respondent was directed to furnish list of his property so that attachment order could be issued. It is said that formal order was later issued attaching the Appellant''s salary. In these circumstances the present appeal was filed.
5. This appeal would have been, in the ordinary course, disposed of as having become infructuous. Order 39 Rule 2A(2) of the Code provides that no attachment made under that Rule shall remain in force for more than one year. No doubt it further provides that if the disobedience or breach of the order of injunction continues, the property attached may be sold and out of sale proceeds, the Court may award such compensation as it thinks fit to injured party. But in the present case it appears that the Respondent is getting his salary from the month of January, 1994. The only substantial breach of the injunction order complained of against the Appellant having thus been remedied, it is obvious that the order of attachment (of salary) lost its effect on expiry of period of one year, i.e. on 1.3.94 itself. There is however something more than meets the eye in this case. In my opinion, both the orders of the Court below (Sri R.A. Singh, VIth Addl. District Judge, Siwan) were not only bad and illegal bat also tainted and call for enquiry on the administrative side. I, therefore, propose to record a short order as hereunder.
6. As indicated above, the suit was filed challenging the order of transfer, seeking a permanent injunction against the Defendant from giving effect to the notification of his transfer. The relevant facts in this regard are as follows.
The Plaintiff-Respondent who is a member of Bihar Health Service was posted as Pathologist in Sadar Hospital, Siwan vide notification of the State Government dated 19.12.86. By notification dated 30.6.90 he was transferred to Home (Police) Department. On 23.7.90 the said notification was stayed. On 31.7.90 the notification was cancelled. On 29.10.90, however by notification No. 2562(2) of the Health Department, previous notification cancelling the earlier notification dated 30.6.90 was recalled and the notification dated 30.6.90 was restored.
7. The Munsif while refusing injunction held that the Plaintiff had no prima facie case in his favour because he does not have any legal right to continue on the particular post. He observed in this connection that transfer is an incident of service. He also held that as the Plaintiff had remained on the post for more than three years, he was liable to be transferred in terms of the Government circular. Balance of convenience was also therefore not in his favour and the question of irreparable injury did not arise because wherever he would go on transfer, he would be entitled to his due salary etc. On these findings the prayer for injunction was rejected. The appellate Court reversed the findings of the Munsif holding that the Plaintiff was Specialist in Pathology and it was not clear from the notification as to in what capacity and to what place he was being transferred. Being Specialist, his transfer from the hospital would make his degree useless. He also held that the stay granted by notification dated 28.7.90 (supra) was still in force and the Plaintiff was functioning on the post. The Plaintiff thus had prima facie case, balance of convenience also was in his favour. By transfer he was also going to suffer irreparable loss which could not be compensated in terms of money. On these findings he allowed the prayer for injunction and directed the Defendant to allow the Plaintiff to join his duty as Pathologist and not to interfere with his functioning.
8. The suit is still pending. By virtue of the aforesaid injunction order the Plaintiff continues to be posted as Pathologist in the Sadar Hospital, Siwan. As noticed above he was posted in the hospital in the year 1986. He is thus there for about eleven years by now. And he is likely to continue there till the suit remains pending, may be many more years. In this view of the matter I am constrained to make certain observations which, I am conscious, may have a bearing on the merit of the suit, which this Court ordinarily avoids making, for they are bound to prejudice the Plaintiff''s case. But the question is whether the Plaintiff has any case at all?
9. The scope of interference by Courts with orders of transfer and posting is well defined by catena of decisions of the Supreme Court as well as of the various High Courts including this Court. I will briefly refer to a few decisions of the Supreme Court. In Shanti Kumari v. RDD, Health Services, Patna AIR 1981 SC 1577 the Supreme Court observed that a Government servant may be transferred due to exigencies of service or due to administrative reasons. The Courts cannot interfere in such matters. If in the opinion of the Government servant the transfer is in violation of any circular, the remedy available to him is to file representation to the State Government. In
10. I would venture to observe that keeping in view the principles laid down by the Supreme Court, even this Court does not ordinarily interfere with the transfer orders. It is only in rare cases where the concerned Government servant establishes the fact of violation of any mandatory statutory rule or malafide that interference is made. It is very curious to note as to how the Court below could pass an order of injunction which has resulted in the Plaintiff-Respondent continuing on the said post at the same place, by now, for eleven years. It may be mentioned here that even where this Court interferes with transfer order, the matter is invariably sent back to the Department for fresh consideration. In my opinion, in these circumstances, the order of injunction, far from being conducive to the ends of justice, verges on either sad ignorance of law or perversity. It would not be out of place to mention here that the Appellant in the supplementary affidavit dated 9.8.94 (filed on 14.8.97) has alleged collusion between the Plaintiff-Respondent and the Court below (Sri R.A. Singh, VIth Addl. District Judge, Siwan).
11. Equally inappropriate was the order under Order 39 Rule 2A of the Code. The only tangible grievance which the Plaintiff had made was that he was not getting his salary. Such a grievance was basically directed against the State Government. The Appellant as the Civil Surgeon or the Superintendent of the Sadar Hospital was merely the head of the office, he could not have done anything contrary to the command of the State Government. It may be stated here that the impugned order of injunction passed by the appellate Court below was challenged by the State Government in this Court initially by way of a writ petition (CWJC No. 3463 of 1993 which was later converted in Civil Revision No. 797 of 1993). The records show that the Civil Revision was dismissed for non-compliance of some peremptory order and an application for restoration is pending. Strange indeed are the ways in which the cases are prosecuted on behalf of the Government.
12. In the above premises, the impugned order dated 3.2.94 is set aside and this appeal is allowed.
13. The Munsif 1st Court, Siwan (or the transferee Court) is directed to dispose of the suit by 30.11.97 and report compliance to this Court. Let a copy of this judgment be communicated forthwith.
14. Let a copy of this judgment, along with records of this case, be placed before the Hon''ble the Chief Justice for such action as may be considered fit and proper against Sri R.A. Singh, VIth Additional District Judge, Siwan, on administrative side.
