CHANDRAMAULI KUMAR PRASAD, J.
(1.) Petitioner is a clerk and while working as such in the Primary Health Centre, Chiraiya in the district of East Champaran, filed application for his transfer before the Civil Surgeon-cum-Chief Medical Officer, East Champaran. The Civil Surgeon-cum-Chief Medical Officer, hereinafter referred the Civil Surgeon, considered his representation and by order as contained in memo dated 13.11.2003 (Annexure-1), transferred him as clerk in the office of the Additional Chief Medical Officer, Motihari in anticipation of the approval of the Health Directorate. In pursuance of the said order, petitioner
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joined at the transferred place.
(2.) It seems that the matter in relation to transfer of the petitioner and respondent No. 5 Rajiv Kumar was under consideration of Health Directorate and hence, by letter dated 18.3.2004 (Annexure-2), the Deputy Director of Health Services asked the Civil Surgeon to furnish the seniority list of clerks working in his surgency. In the light of the aforesaid order, the seniority list was sent. Thereafter, by the impugned order as contained in memo dated 15.7.2004 (Annexure-40, the order of the Civil Surgeon dated 13.11.2003 transferring the petitioner in the office of the Additional Chief Medical Officer, Motihari was rescinded and in his place, Respondent No. 5 being senior to him was posted.
(3.) it is the assertion of the petitioner that many persons junior to him are posted in the office of the Additional Chief Medical Officer and many persons even senior to Respondent No. 5 are working at Primary Health Centres. In paragraph-8 of the writ application, petitioner has averred that transfer and posting are not decided on the basis of seniority.
(4.) Counter affidavit has been filed on behalf of Respondent No. 2 and in paragraph No. 3(d) thereof, it has been admitted that seniority is not a parameter for posting. Respondent No. 2 in the counter affidavit has also placed on record letter dated 3.12.2003 of the Additional Chief Medical Officer where the petitioner was posted, addressed to the Civil Surgeon highlighting his lack of experience for being posted in the office of the Additional Chief Medical Officer.
(5.) Reply to the counter affidavit has been filed in which the petitioner has placed on record letter dated 6.7.2004 (Annexure- 8) in which the said Additional Chief Medical Officer had written to the Director-in-Chief of the Health Services that the petitioner's work is satisfactory. Petitioner has also placed on record the Circular dated 20.1.1992 (Annexure-6) to show that power of transfer of a clerk in the surgency lies with the Civil Surgeon of the district.
(6.) Mr. Banwari Sharma, appearing on behalf of the petitioner contends that the seniority is not the criteria for transfer and posting, which assertion having been admitted by Respondent No. 2 in the counter affidavit, impugned order rescinding the posting of the petitioner is on non-est ground and as such, impugned order is vitiated on that account alone.
(7.) Standing Counsel No. II, however, appearing on behalf of the respondents, submits that the petitioner's posting by the Civil Surgeon by memo dated 13.11.2003 was found to be illegal and accordingly, same was rescinded and while considering the posting of a clerk in the office of the Additional Chief Medical Officer, respondent No. 5 was chosen who is senior to the petitioner. He concedes that seniority, however, is not the parameter for transfer and posting of an employee.
(8.) Having considered the rival submission, I do . lot find any substance in the submission of Mr. Sharma. The Civil Surgeon, by his order as contained in memo dated 13.11.2003, transferred the petitioner to the office of the Additional Chief Medical Officer in anticipation of the approval of the Health Directorate when the matter was examined by the Health Directorate, it was found that the petitioner's posting in the office of the Additional Chief Medical Officer, is illegal and same was rescinded and while posting Respondent No. 5 there, his seniority has been taken into account, in such a situation, it can not be said that petitioners' transfer has been rescinded on the ground that he is junior to Respondent No. 5.
(9.) Mr. Sharma, then contends that the Civil Surgeon is competent to transfer "a clerk from one place to another and the condition put, which effecting transfer i.e. approval of the Health Directorate, is absolutely superfluous and although the Directorate has not given the approval, the order of the Civil Surgeon being within its jurisdiction shall not lose its efficacy. In this connection, he has drawn my attention to the letter of the State Government dated 18.1.1992 (Annexure-6) contending that the Civil Surgeon is competent to effect the transfer of clerks in his own surgency.
(10.) Standing Counsel No. II contends that while posting the petitioner in the office of the Additional Chief Medical Officer, the Civil Surgeon himself has stated that it is in anticipation of the approval of the Health Directorate. In such circumstance, the Health Directorate having declined to grant approval, the impugned order can not be said to be illegal.
(11.) Having considered the rival contention, I do not find any substance in this submission of Mr. Sharma also. Without going into the merit of the submissions as to whether the Civil Surgeon is competent to transfer a clerk within his surgency, I assume in favour of the petitioner that he possesses such power. However, while exercising that power, the Civil Surgeon himself had stated that the posting of the petitioner has been done in anticipation of the approval of the Health Directorate. Undisputedly, the Health Directorate had not given the approval to the posting of the petitioner and in such circumstance, the impugned order cannot be said to be illegal.
(12.) It is well settled that transfer of an employee from one place to another is an incidence of service and this Court interferes with the order of transfer only when it is shown that it is in breach of any mandatory rule or suffers from the vice of mala fide. The order impugned does not suffer from any such error. I do not find any merit in this application and it is dismissed accordingly. No cost