Central Administrative Tribunal - Bangalore
Dr E Chandrashekar vs Employees State Insurance Corporation ... on 10 April, 2023
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OA.No.170/495/2021/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00495/2021
Order Reserved on: 16.02.2023
Date of Order: 10.04.2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
Dr. Chandrashekar. E,
Age: 42 years,
S/o Eregowda. K,
Working as Specialist Gr-I, Assistant Professor,
Dept. of Anesthesiology,
At ESIC Model Hospital- PGIMSR,
Rajajinagar, Bangalore-560 010. ..Applicant.
(By Advocate Smt Akkamahadevi Hiremath)
Vs.
1.Union of India,
Ministry of Labour & Employment,
Government of India, Nirmal Bhavan,
New Delhi-110 011,
Represented by its Secretary.
2. Employees State Insurance Corporation,
Hqrs. Office, Panchadeep Bhavan,
C.I.G Marg, New Delhi- 110002,
Represented by its Deputy Director (Med Admin).
3.The Employees State Insurance Corporation
Model Hospital & PGIMSR, Rajajinagar
Rajajinagar, Bangalore-560 010
Represented by its Deputy Director (A).
4.The Employees State Insurance Corporation Hospital,
Rudrapur-263153, Uttarakhand State
Represented by its Medical Superintendent.
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OA.No.170/495/2021/CAT/Bangalore Bench
5. Employees State Insurance Corporation,
Hqrs. Office, Panchadeep Bhavan,
C.I.G Marg, New Delhi- 110002,
Represented by its Director General.
6.The Employees State Insurance Corporation
Model Hospital & PGIMSR, Rajajinagar
Bangalore-560 010
Represented by its Dean.
7.The Employees State Insurance Corporation
Model Hospital & PGIMSR, Rajajinagar
Bangalore-560 010
Represented by its Medical Superintendent.
....Respondents
(By Shri N. Amaresh, Sr. Panel Counsel)
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
a) To set aside the order No.22/13/1/2018-Med.IV, dated 07.10.2021 in (Ann-A1) passed by the Respondent No.2, to the extent it transfers the applicant at Sl.No.2 of the said order from ESIC PGIMSR Rajajinagar Bangalore to ESICH Rudrapur.
b) To set aside the relieving order dated 08.10.2021 (Annexure A-2) passed by Respondent No.3 to the extent that it relieves the applicant at Sl.No.2 of the said order from ESIC PGIMSR Rajajinagar, Bangalore.3
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c) Grant any such relief as deemed fit in the facts and circumstances of the case.
2. The facts of the case as pleaded by the applicant in his pleadings, are as follows:
a) The applicant joined the 3rd Respondent hospital as Junior Specialist Grade-II on 03.8.2009 after completion of his MD Anaesthesia from JJM Medical College at Davanagere.
b) The 2nd Respondent decided to start medical colleges by upgrading the existing hospitals in the Country, by amending the ESI Act and inserting Section 59B to the Employees Provident Fund Act. The 2nd Respondent established model hospital in Rajajinagar, Bangalore among others. The Post Graduate Degree courses were started in the PGMSIR, Rajajinagar, Bangalore from 2009-2010 and the UG courses started from 2012-2013 academic year.
c) The 2nd Respondent issued an Office Order No.286 of 2009 Dated 11.12.2009 designating the applicant as Specialist-cum-Assistant Professor (Annexure A-3). The 3rd Respondent has been submitting Teacher Profile to the National Medical Council (erstwhile Medical Council of India) every year.
d) After completion of two years of service the applicant was promoted as Junior Specialist Grade-I. As per the MCI requirements, there are 5 sanctioned posts for Asst. Professor, One post of Professor and 3 posts of Associate Professor. The post of Associate Professor is vacant since 4 OA.No.170/495/2021/CAT/Bangalore Bench two years and the post of Asst. Professor fell vacant recently after Dr Vishwanath Ankad was promoted as Associate professor and transferred to Bihta, Bihar. The post of Asst. Professor has been filled on Contract basis only in July 2021.
e) As per Clause 3(d) to the Memorandum dated 13.7.2009 issued to the Applicant, the Specialists Gr-II will have All India level seniority, so also the Specialist Gr 1 (Annexure A5). The seniority of the Applicant is at the all India level. The copy of the Seniority list of Specialists Gr II (Jr Scale) prepared in the year 2014 is produced as Annexure A-6. The Respondents have not issued the seniority list of Specialists Gr-I of all India level employees.
f) The position of the Applicant is at Sl no.91 as per the All India Seniority list for Specialist Gr-II, with 90 persons above him, while in his discipline (Anaesthesia) there are 6 persons above him, namely, at sl.nos.4 (is already transferred) 18, 40, 45, 73,and 79 who were never transferred.
g) In the Seniority List for SAG, which is above his rank/Grade, (Annexure A7), at sl.no.26, 51, 60, 65, 79, 98 and 102, there are 7 Anaesthetists who are senior to him who were never transferred. There are Specialists working in hospital for more than 15 years, who have never been transferred.
h) The Applicant is eligible to be designated as Associate Professor in the 3rd Respondent College. The Applicant has submitted a representation 5 OA.No.170/495/2021/CAT/Bangalore Bench dated 26.3.2018 for re-designation as Associate Professor which has not been considered, though there is a vacancy since the last two years.
i) This Tribunal vide order dated 26.2.2020 in OA.1234 of 2019 and connected matters pertaining to 3rd Respondent hospital, has held that the person who has most station seniority should be considered for transfer first, and only then the Juniors.
j) The Applicant has been designated as an Assistant Professor and being a teaching faculty throughout his stint in the ESI, he cannot be sent to a non-teaching institution or post, as he is entitled to be continued in the teaching position, where he is now already eligible and on the threshold of being re-designated as an Associate Professor.
k) The impugned transfer order (Ann. A1) said to have been issued in public interest, is actually against it, and even more so against the interest of the ESI itself, as a trained teacher is sought to be sent to a Practitioner's job. The Respondents have not specified what public interest prevails in transferring the applicant and several others to the 4th Respondent. The 4th Respondent hospital does not have the requirement of doctors as the number of Insured Persons within the jurisdiction of the 4th Respondent is abysmally low. The Rudrapur hospital is an underutilised hospital of the 2nd Respondent. The requirement of doctors in Rajajinagar, Bangalore hospital is manifold and in public interest. Mere stating 'public interest' does not empower the 2nd Respondent to transfer the applicant to a hospital where utilization of his skills as a specialist is curtailed. 6
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l) The applicant made a representation dated 12.10.2021 to reconsider the issue and pointed out the legal infirmity in their Transfer Order dated 07.10.2021, and sought for withdrawal of the same and also the relieving order.
m) The Applicant submits that his father is 76 old and dependent on the Applicant as he is suffering from heart ailments. The Applicant's father is diagnosed with Paroxysmal Atrial Fibrillation which requires constant care and consultation and also admission whenever he has the episode of AF which results in falling bp. He also has undergone thyroid surgery for cancer in 2015 and is also suffering from diabetes and hypertension for a long time. The Applicant has two kids who are going to school. The first son is 11 year old and has been physically attending classes and the daughter is 5 year old. Therefore, the family of the Applicant will be put to hardship due to arbitrary transfer of the Applicant.
n) The Post to which the Applicant has been transferred, is of Jr. Specialist
- Level -11, whereas, the Applicant is a Senior Specialist of level 13. Thus, the Jr. Specialist who are required at the hospital at Rudrapur are of level 11. The Applicant is not required for the level of work experience contemplated for the said post to which the Applicant has been transferred.
o) The post to which the Applicant has been transferred carries a lesser experience of 6 years. Further, the Financial Commissioner has sanctioned the pay for the said level, which is also lesser by about 7 OA.No.170/495/2021/CAT/Bangalore Bench Rs.1,00,000/-. It is submitted that, there are other Jr. Specialists in the country who are liable and available to be transferred to the said Post. Hence, the Applicant cannot be transferred to a post which does not carry the promotion level of a Senior Specialist, as the post to which the Applicant is transferred is not that of a Senior Specialist.
3. The respondents have filed their written statement wherein they have averred as follows:
a) Medical Council of India (MCI) is the competent authority to establish norms for recognition of any institution as Medical Education Institute/Hospital. As per norms of MCI, it is mandatory for a medical education institution to post Specialists (Teaching) for recognition.
Therefore, specific cadre of Specialists (Teaching) consisting of Assistant Professors, Associate Professors and Professors has been sanctioned for ESIC Medical College, Rajaji Nagar & as per norms of MCI, ESIC appointed teaching faculty on regular/contractual basis at ESIC Medical College Rajaji Nagar in due course.
b) In the initial phase of the commencement of Medical Education Institution at Rajaji Nagar, the Applicants, who are Specialist (Non- teaching), were posted in ESIC Medical College & Hospital Rajaji Nagar as "stop-gap/initial arrangement" till posting of Specialist (Teaching) as required as per MCI norms.
c) Teaching cadre is a separate cadre having separate recruitment rules.
However, ESIC has positively considered the requests of existing Non- 8
OA.No.170/495/2021/CAT/Bangalore Bench teaching Specialists for their re-designation as teaching faculty in respect of those who were fulfilling the criteria as per MCI norms, subject to the limit of sanctioned strength and availability of vacancy in the discipline concerned. A considerable number of medical officials, who were fulfilling the MCI eligibility conditions, have been designated as Teaching faculty and kept posted in other ESIC Medical Colleges, but obviously, to the extent of administrative feasibility. The Respondent Organization, being master, has every right to assign the additional duties to the Applicant and utilize his services as per administrative requirements.
d) MCI allows designation of non-teaching Doctors/Medical Officers who fulfil the criteria prescribed for the purpose. ESIC also considered the willingness of its existing Medical Officers for their designation as teaching faculty. Accordingly, a considerable number of medical officers, who were fulfilling the MCI eligibility conditions, were designated as Teaching faculty and kept posted in Medical Colleges of ESIC, but obviously, to the extent of administrative feasibility.
e) The Applicant has no right duly supported by any service rule for his designation as Associate Professor and the same is a matter of administrative feasibility. If at all he is interested in teaching duties on regular basis, ESIC has never obstructed his way to apply for the post as open candidate subject to his selection as per procedure.
f) It is an admitted fact that there are significant number of doctors in the discipline in Rajajinagar Hospital. Other surplus doctors, whose 9 OA.No.170/495/2021/CAT/Bangalore Bench services are not considered necessary in the above hospital shall also be considered for being transferred out as per administrative feasibility and requirements.
g) Regarding the averments of the Applicant to consider him for the post of Associate Professor in the respondent Organization, it is reiterated that ESIC is mandatorily bound to only post Assistant Professors/ Associate Professors/ Professors as Specialist (Teaching) in ESIC Medical Colleges in replacement of Specialists (Non-Teaching) as per the prescribed norms of staff strength laid by the Medical Council of India (MCI) for recognition of any Medical Education appointed Institution.
h) The observation made by the Tribunal vide its order dated 26.2.2020 in OA.1234 of 2019 is in a case related to the Nursing cadre where all the incumbents in the cadre possess the same qualification.
i) The Respondents submitted that, the Rationalization policy was upheld by this Tribunal in O.A No. 279/2019 and other connected matters. Under this policy, Specialists like Applicants have All India Transfer Liability and can be transferred. It is submitted that the Applicant has worked for a considerable period in the institution at Rajajinagar from the date of his appointment for about 12 years. The Applicant is a Group "A" Medical Officer having All India Transfer Liability. All the contentions of the Applicant raised in the present OA were duly considered by this Tribunal in O.A No.196/2019 and other connected 10 OA.No.170/495/2021/CAT/Bangalore Bench matters, wherein the Employees like the Applicant challenged the Rationalization policy itself.
j) The Applicant was re-designated as "Specialist cum Assistant Professor". The redesignation was subject to certain conditions which are evident from Annexure-A3 vide para 2-4, which state that:
".. 2. They will continue to draw the existing pay scale and allowances and no additional remuneration will be payable to them on account of such designation.
3. They can be assigned any additional duty by the Competent Authority
4. The above-mentioned designation as Specialist-Cum- Assistant Professor is applicable only at present place of posting and such designation will stand withdrawn on transfer to other ESI Hospital..."
k) ESIC has arranged to provide enough doctors to accommodate the requirement of Rajajinagar and Peenya Hospital. The organization needs doctors, especially with PG qualification, in other non-metro centres like Rudrapur.
l) Employees' State Insurance Corporation is a statutory body established as per provisions of the ESI Act with primary objective & its main duty is to provide social security in the form of certain Cash benefits against loss of wages due to employment injuries and reasonable medical care services to "Workers" class of society. The ESIC is fully financed by 11 OA.No.170/495/2021/CAT/Bangalore Bench the contributions received from workers and their employers. Workers who are deprived class of the society contribute 0.75% of their hard- earned wages to the maximum limit of Rs. 21,000/- per month.
m) The transfer of these medical officials to newly opened hospital at Rudrapur, Uttarakhand was required to provide better facility in its nascent phase rather than exploiting their professional excellence at an established unit like ESIC Rajajinagar. Therefore, the steps taken by the respondents in this matter is in "public interest".
4. In the rejoinder to the reply, the applicant has averred as follows:
a) The applicant was designated as an Assistant Professor on 11.12.2009 vide Office Order No.286 of 2009 (Ann. A-3) because the ESIC was following the mandatory provisions of the MCI regarding appointment of teaching faculty. However, now it is taking the stand that the applicant was appointed on "Stop-Gap/Initial Arrangement" till posting of Specialist (Teaching) as required as per MCI norms.
b) The applicant has been in the teaching post since the last 12 years, and is now due for re-designation as Associate Professor. The applicant was designated as Assistant Professor and as such he continues to serve as Assistant Professor without any monetary benefits voluntarily, only because he is assured of professional satisfaction. While the applicant's request for re-designation as Associate Professor is pending consideration, his purported transfer is a subterfuge to remove him from a teaching hospital which will set at naught his 12 years of 12 OA.No.170/495/2021/CAT/Bangalore Bench teaching experience. It is an attempt to deprive him of his right to be re-designated as an Associate Professor.
c) There are several other Assistant Professors who are in the same station for more than 12 years, which is a longer period than that of the applicant. This is particularly so, when the transfer policy condition No.3 states that an employee shall be liable for transfer 'automatically' once in five years. Further, wherever an exception is made in not transferring the employees in 5 years, the respondents shall have to give reasons for not doing so, which is what condition No.9 of the policy states.
5. The respondents in their additional reply to the amended OA have further stated as follows:
a) The posts in GDMO or Specialist cadre in any of the ESIC Medical Institution is always sanctioned in the base Cadre posts i.e. IMO Grade-
II (Level 10) for GDMO cadre; specialist Grade-II (Junior scale) (Level
11) for Specialist Cadre and at Level 12 for Super Specialists. The number of posts in higher scales automatically get revised in accordance with number of Medical Officers holding such higher posts based on their promotion under the DACP. In fact, the strength for the institution, where the applicant is presently posted, has been sanctioned in the similar fashion, yet he is being granted pay in the scales higher than that prescribed for base cadre post.
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6. Heard learned counsels for the parties and perused the pleadings made by them.
7. The applicant has prayed for quashing of his transfer order dated 7.10.2021, wherein, he has been transferred from ESIC MC & PGIMSR, Rajajinagar, Bangalore to ESIC Rudrapur.
8. The applicant has stated that he has been working as Specialist-cum Assistant Professor at ESIC MC & PGIMSR, Rajajinagar, Bangalore w.e.f. 11.12.2009. He made a representation to the respondents on 26.03.2018 to consider his re-designation from the post of Assistant Professor to Associate Professor, which has not been considered so far. He has assailed his transfer on the ground that there are other senior Specialists above him in the order of seniority who have never been transferred. He has stated that directions given by this Tribunal in OA.No.1234/2019 vide orders dated 26.2.2020 held that persons who have most station seniority should be considered for transfer first and only then the juniors need to be considered.
9. The respondents on the other hand have categorically stated that the applicant was appointed as Specialist Grade-II on direct recruitment basis and he is not a part of the teaching faculty. He only had been re-designated as Specialist-cum-Assistant Professor in his speciality as a stop-gap arrangement till such times as the post of Assistant Professor in teaching cadre is filled up by the respondents as per MCI norms. The post held by the applicant is a Specialist Grade-II post which carries all India transfer liability and the applicant is liable to be transferred in public interest to any other ESI Institution in any part of the Country. The applicant has been 14 OA.No.170/495/2021/CAT/Bangalore Bench posted at ESIC Rajajinagar since 2009 and has spent the maximum service period there. Hence, according to the respondent, he has no ground to challenge his transfer to ESIC Rudrapur at this stage.
10. It is noted that the applicant has admittedly been initially appointed on 3.8.2009 to the cadre of Specialist Grade-II (non-teaching). He was subsequently promoted as Specialist Grade-I (non-teaching), which is the post held by the applicant at present. He continues to be on this post which has an All-India transfer liability.
11. The issue of designation of Consultants and Specialists, as Assistant Professors/Associate Professors/ Professors was examined in detail by The Division Bench of the Hon'ble Delhi High Court in W.P.(C) No.7049/2005 Faculty Association Maulana Azad Medical College Vs. UOI & Ors. In this case, the Delhi High Court, in a detailed order held as follows:
(i) Clause (d) to Regulation 11.1 of the PGME Regulations, 2000 treats Consultants or Specialists having the requisite experience not attached to medical colleges but post-
graduate institutions covered by Sub- Regulation 1A to Regulation 8 as Professors, Associate Professors and Assistant Professors. The petitioners are unable to establish and show that clause (d) to Regulation 11.1 is illegal or bad in law. On the other hand, the respondents have been able to show and establish the reason and cause why the aforesaid clause was enacted by the MCI. The object and purpose were to allow and permit post-graduate courses already in existence should not close down and stop pursuant to the promulgation of PGME Regulations, 2000.
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(ii) Clause (d) of Regulation 11.1 of the PGME Regulations, 2000 is not in conflict with the CHS Rules in any manner. The teaching and non-teaching cadres remain distinct and separate. Consultants and Specialists in the non-teaching sub-cadre continue to remain members of the said cadre and are not entitled to occupy posts meant exclusively for the teaching sub-cadre. The PGME Regulations, 2000 and CHS Rules operate in different fields and the equivalence granted for the purpose of the PGME Regulations, 2000 would not affect members of the teaching sub-cadres as it does not amount to transfer or change in sub-cadres.
(iii) Clause (d) to Regulation 11.1 of the PGME Regulations, 2000 does not postulate one-time exception and there can be subsequent designations as long as there is a shortage of Professors, Associate Professors or Assistant Professors belonging to the teaching sub- cadres.
(iv) Designations for the purpose of clause (d) to Regulation 11.1 of the PGME Regulations, 2000 can be only awarded to Consultants and Specialists who fulfil the minimum requirement for imparting post-graduate medical education to the sanctioned annual intake in the respective government institutions/ hospitals and cannot exceed the said numbers. Violation of the proviso and the question whether there are excessive designations has not been raised and argued before us. The petitioners have stated that this is not a subject matter of the present writ petition and has been raised in other writ petition pending in the High Court. We have, therefore, not examined the factual matrix and the question whether there has been a violation of the proviso to Regulation 11.1(d) of the PGME Regulations, 2000.
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12. The Division Bench of the Delhi High Court has, therefore, categorically held that the teaching and non-teaching cadres remain distinct and separate. Consultants and Specialists in the non-teaching sub-cadre continue to remain members of the said cadre and are not entitled to occupy posts meant exclusively for the teaching sub-cadre. The PGME Regulations, 2000 and CGS Rules operate in different fields and the equivalence granted for the purpose of the PGME Regulations, 2000 would not affect members of the teaching sub-cadres as it does not amount to transfer or change in sub- cadres. It has also been held that this designation is only to meet the immediate requirements due to shortage/non availability of teaching faculty.
13. The applicant belongs to the Specialist (non-teaching) cadre in ESIC, and hence cannot claim any right to hold the post of Assistant Professor or Associate Professor, which is a part of teaching cadre faculty in ESIC. He has been categorically allowed to take up teaching as an additional duty only and it is clear from the Office order dated 11.12.2009 that he will continue to perform the existing duties of Specialist assigned to him. In addition to his duties as a specialist, he is required to perform the duties of a teaching faculty as "Specialist cum Assistant Professor".
14. It has also been clarified in the order that the above-mentioned designation as Specialist-cum-Assistant Professor is applicable only at present place of posting and such designation will stand withdrawn on transfer to any other ESI Hospital.
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15. Hence, the applicant cannot claim as a matter of right that he should continue to perform the additional duties as a part time teaching faculty at ESIC PGIMSR Rajajinagar Bangalore.
16. As far as his transfer to ESIC, Rudrapur, is concerned, there is no doubt that the respondents have the authority to transfer the applicant to any other hospital in public interest, subject to the transfer guidelines which have been formulated by them.
17. A careful perusal of the transfer policy issued by the respondents dated 10.8.2018, which was in force at the time of issuance of the impugned orders of transfer, had the following provisions:
i. All Medical Officers would continue to be liable for posting anywhere in India.
ii. This transfer policy for posting anywhere in India will be applicable to Medical Officers belonging to the cadres of General Duty Medical Officers, Specialist, Teaching Faculty, Dental Surgeon and AYUSH. The term 'Medical Officer', hereinafter would include all doctors.
iii. Normal tenure of a Medical Officer at any place of posting shall be a maximum of 5 years. On completion of 5 years tenure in the Institution/location, the Medical Officer shall automatically be considered for transfer. In exceptional cases, this tenure may be extended beyond 5 years on the ground of excellence and extraordinary performance. 18
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18. A plain reading of the policy indicate that the tenure is of 5 years at any place of posting or Institution/location. In the present case, the applicant has already served for more than five years as a Specialist Grade-1 and Specialist Grade-2 since the time of his appointment in 2009. He has an All-
India transfer liability as a Specialist Grade-2 officer. Hence, his transfer, in public interest, to Rudrapur is not in violation of the 2018 policy of the respondents relating to transfers and postings.
19. The 2nd contention of the applicant is that he had been involved in teaching as Assistant Professor and hence cannot be transferred out of Rajajinagar. This contention cannot be accepted, since this teaching responsibility was given to him only as an additional responsibility due to non-availability of teaching cadre specialists at that time. The order granting this additional responsibility to him clearly specified that "the above-mentioned designation as Specialist-cum-Assistant Professor is applicable only at present place of posting and such designation will stand withdrawn on transfer to other ESI Hospital". Hence, this additional work is entrusted to him only till such times as he is posted at ESIC Rajajinagar. He cannot claim that due to this additional work/responsibility, he cannot be transferred from ESIC Hospital at Bangalore to ESIC Hospital at Rudrapur.
20. Strict mechanical seniority order in the cadre of Specialists Grade-2 cannot be followed while considering transfers-postings. The administrative requirements of doctors with a certain qualification at a particular location, and availability of such doctors at another location whose services can be 19 OA.No.170/495/2021/CAT/Bangalore Bench spared in public interest, also has to be considered by the Respondent administration.
21. There are a plethora of judgements in Supreme Court on the issue of Judicial intervention in the matter of postings and transfer of employees.
22. In Mrs. Shilpi Bose and others vs. State of Bihar and others AIR 1991 SC 532, the Honourable Supreme Court has observed as follows:
"In our opinion, the courts should not interfere with a transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department..................................."
23. In Union of India and others vs. S.L. Abbas AIR 1993 SC 2444, the Honourable Supreme Court has observed as follows:
"Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court 20 OA.No.170/495/2021/CAT/Bangalore Bench cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration"
24. A similar view has been taken in National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan and another (2001) 8 SCC 574, wherein it has been held as follows:
"..no Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of malafide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders, as though they were the appellate authorities substituting their own decision for that of the management."
25. During the course of the hearing in the present OA, it was observed that the transfer policy of 2018 has been replaced by a new transfer policy notified 21 OA.No.170/495/2021/CAT/Bangalore Bench on 20.6.2022. All transfers and posting are supposed to be henceforth regulated in terms of this new policy.
26. A perusal of the transfer policy dated 20.6.2022 issued by the respondents indicates that this policy is applicable to all cadres of medical officers such as GDMOs, Specialists including Super Specialists, Teaching Faculties, Dental, Ayurveda and Homeopathy performing non-administrative/ clinical functioning, referred to as "Doctor".
27. As per this revised policy all doctors of ESI Corporation shall be covered and will be liable for transfer and posting anywhere in India. However, for the purpose of posting on transfer under this policy, they will be considered in the following priority:
(i) At the institution of their choice, failing which
(ii) At any of the institution situated at the station of their choice/posting, failing which
(iii) At any of the institution situated within the zone in which the medical officer is posted, failing which,
(iv) In the contiguous zones to the zone in which the medical officer is posted, failing which,
(v) At any location where the vacancy is created/available.
28. It is also mentioned in the policy that they can also be transferred/posted at any other ESIC Institution as per the administrative requirements.
29. The Zone-wise grouping of States under this new policy is as under: 22
OA.No.170/495/2021/CAT/Bangalore Bench S.No. Zone States
1. I Jammu & Kashmir, Ladakh, Himachal Pradesh and Punjab
2. II Delhi and National Capital Region (including Noida and Sahibabad), Haryana (including Gurgaon, Faridabad and Manesar) and Rajasthan (including Bhiwadi).
3. III Uttar Pradesh (excluding Noida and Sahibabad); Uttarakhand, Bihar and Jharkhand.
4. IV Madhya Pradesh and Chhattisgarh
5. V West Bengal, Assam & Entire NEZ and Odisha
6. VI Maharashtra, Goa and Gujarat
7. VII Andhra Pradesh, Telangana and Karnataka
8. VIII Tamil Nadu, Puducherry and Kerala
30. The Objectives of the transfer policy, as declared, is as under:
(i) To meet organizational requirement of doctors with varied experience and job knowledge.
(ii) To provide an opportunity to all doctors to improve their proficiency, self- development and career path.
(iii) To groom officers for taking positions in higher rank and utilise their experience earned with age and position.
(iv) To conform to various DoPT/ Government guidelines/ Supreme Court directions, as far as possible.
(v) To implement Central Vigilance Commission (CVC) guidelines regarding rotation of doctors at clinical postings and in sensitive posts.
(vi) To have right person at right position and place. 23
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(vii) To have transparency in transfer and posting.
31. The new transfer policy apparently considers the Administrative requirements of ESIC as well as the convenience of the doctors, while taking into account their transfers/ postings. In the present case, the applicant while working in Bangalore (Zone VII), has now been posted to ESIC, Rudrapur, which falls under Zone III. He has also stated various personal reasons on account of which he is praying for cancellation of his transfer to Rudrapur from Bangalore.
32. Keeping the above in view, it would be appropriate for the respondents to reconsider the impugned transfer order issued by them in line with the new transfer policy dated 20.6.2022.
33. Accordingly, the OA is allowed. The impugned transfer order No.22/13/1/2018-Med.IV, dated 07.10.2021 in (Ann-A1) passed by the Respondent No.2, and the relieving order dated 8.10.2021 passed by Respondent No: 3 qua the applicant, are set aside and the respondents are directed to reconsider the transfer of the applicant under the new transfer policy, which has been notified on 20.6.2022 and to issue a reasonable and speaking order keeping the new policy in view.
34. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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