Central Administrative Tribunal - Ernakulam
Dr Reshma Rajan vs Southern Railway on 14 March, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00434/2021
Monday, this the 14th day of March, 2022
CORAM:
Hon'ble Mr. P. Madhavan, Judicial Member
Hon'ble Mr. K.V. Eapen, Administrative Member
Dr. Reshma Rajan, aged 32 years, W/o. Dr. Aswin P.,
Working as Assistant Divisional Medical Officer at Railway
Hospital, Palakkad, residing at Vyshnav, Bheemanad PO,
Palakkad District, Kerala, Pin - 678 601. ..... Applicant
(By Advocate : Mr. Arun Samuel)
Versus
1. Union of India, represented by Secretary to the Government,
Ministry of Railways, Railway Bhavan, New Delhi, Pin - 110 001.
2. The Chairman & CEO, Railway Board, New Delhi, Pin - 110 001.
3. The Director General, Railway Health Services, Railway Board,
New Delhi, Pin - 110 001.
4. The General Manager, Southern Railway, Chennai - Thiruttani-
Renigunta Highway, NGO Annexe, George Town, Chennai,
Tamil Nadu, Pin - 600 003.
5. The Principal Chief Medical Director, Southern Railway,
Chennai, Tamil Nadu, Pin - 600 003.
6. The Chief Medical Superintendent, Railway Hospital,
Palakkad, Kerala, Pin - 678 009. ..... Respondents
(By Advocate : Mrs. Girija K. Gopal)
This application having been heard on 14.02.2022, the Tribunal on
14.03.2022 delivered the following:
ORDER
Hon'ble Mr. P. Madhavan, Judicial Member -
This is an Original Application filed by the applicant seeking the 2 following reliefs:
"a. Call for the records leading to Annexure A9 and thereafter, set aside the same as unsustainable in law.
And b. For a declaration that the applicant is entitled to continue as Assistant Divisional Medical Officer at Railway Hospital, Palakkad.
Or a. To issue a direction to the 5th respondent to take up , consider and dispose of Annexure A10 representation without any further delay or within a time frame to be stipulated by this Hon'ble Tribunal. b. To grant such other reliefs as may be prayed for and this Hon'ble Tribunal may deem fit to grant.
And
c. Grant the costs of this Original Application."
2. The question involved in this OA is whether Annexure A9 transfer order is liable to be set aside ?
3. In short the facts of the case are as follows:
The applicant is a post graduate medical Doctor and a specialist in community medicine. She belongs to 2015 batch of Indian Railway Health Services (IRHS). Applicant had joined National Academy of Indian Railways at Vadodara on 16.12.2019 for training. She was relieved from the institute on 13.5.2020 to Southern Railway for getting a posting. She reported before Southern Railway and was appointed as Assistant Divisional Medical Officer (ADMO) in the Railway Hospital at Perambur, Tamil Nadu temporarily due to the prevailing pandemic situation. Since the child of the applicant was aged only one year at that time, she took child care leave with effect from the date of posting at Perambur. It was granted by the 3 respondents. She had given a request to the respondents for being posted at the Railway Hospital at Palakkad owing to the above fact and also since her husband is working in District Hospital, Palakkad. On 7.9.2020 the 4th respondent has granted a temporary transfer to the applicant and she was posted at Railway Hospital, Palakkad. The said order is produced as Annexure A4. In the month of March 2021, the applicant again approached the respondents seeking a permanent posting at Railway Hospital, Palakkad. The said representation was considered by the respondents and the applicant was permanently posted at Railway Hospital, Palakkad w.e.f. 5.7.2021. The said order is Annexure A8. On 26.7.2021 the 4th respondent had suddenly transferred the applicant to Sub Divisional Railway Hospital, Podanur under Salem Division of Southern Railway. The said order is the impugned order at Annexure A9. Immediately on coming to know of the transfer order, the applicant submitted a fresh representation to the 5th respondent routed through 6th respondent requesting to grant her permission to continue her in the Railway Hospital at Palakkad. The applicant was hopeful that she would be accommodated at Palakkad. The applicant continued to work in Railway Hospital, Palakkad till 23.8.2021. In the meanwhile she got a sprain in her right ankle and she had undergone treatment at District Hospital, Palakkad wherein she was advised to take rest for two weeks. Hence, she could not go to the office. The applicant also submits that her father-in-law had undergone a cochlear implantation surgery in July, 2021 and there is nobody to look after him in the house. He requires rehabilitation for one year. The applicant is substantially aggrieved by the gross irregularities perpetrated by respondents Nos. 4 and 5 in passing Annexure A9 order of transfer. The 4 applicant was temporarily posted at Railway Hospital, Palakkad on 7.9.2020 and thereafter she was permanently posted as per Annexure A8 order dated 5.7.2021. Immediately, thereafter the applicant was transferred to Sub Divisional Railway Hospital, Podanur on 26.7.2021 i.e. exactly 3 weeks after the date of her permanent posting at Railway Hospital, Palakkad.
According to her the transfer order is arbitrary and an outcome of malafide exercise of powers by the 4th respondent. The applicant had a legitimate expectation that she would be continued to be at Palakkad and she would be given a fair hearing before the transfer. So according to the applicant Annexure A9 order is arbitrary and is liable to be set aside.
4. When the matter came up for admission the respondents were directed to maintain status quo of the applicant, if she was not relieved till date.
5. The respondents had filed a reply statement and also an MA No. 180/914/2021 praying to vacate the interim order passed against the respondents. Since the pleadings are complete in the matter, we have heard both sides in detail.
6. As per the reply statement filed by the respondents the applicant did not join Perambur and availed child care leave till she was posted at Palakkad temporarily as per Annexure A4 on humanitarian grounds. According to the respondents in the meanwhile one Dr. Narasimham, who was then functioning as Additional Chief Medical Superintendent in charge, Salem Division was under orders of posting as Chief Medical 5 Superintendent, Madurai Division to an existing vacancy and had to be relieved to Madurai. Consequently, Dr. Subaida A. Manikfan, ACMS, Podanur was posted as ACMS In-charge to Salem Division. In order to fill up the resultant vacancy at Podanur respondents considered the name of the applicant who is the juniormost at Palakkad Railway Hospital and transferred her to Podanur which was issued purely on administrative exigency. According to them Podanur is a place where apart from other offices, a Workshop is also functioning and total concentration of employees and family members there is about 4,000. Their family members are also there and the Health Unit at Podanur has to cater their needs as well. Instead of two sanctioned doctors, Podanur was having only one doctor and there arose dire necessity for one more doctor at Podanur. It is to meet this exigency of service that the applicant was transferred to Podanur. Podanur is only 50 Kms. away from Palakkad and according to the counsel for the respondents there exists trains in between Palakkad and Podanur and it is very near to Palakkad where the applicant is at present working. According to them, transfer is an incident of service and there cannot be any expectation that one would be permanently posted at Palakkad. So the transfer of the applicant to Podanur was purely on administrative exigency. According to the respondents there is absolutely no malafide or arbitrariness in the transfer and posting done in this case and according to them it was done under exigency of service and also to meet the urgent need of the hospital at Podanur.
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7. We have heard the learned counsel appearing for the applicant and the learned counsel appearing for the respondents. The appointment details of the applicant are admitted in the reply statement. It appears that the applicant was posted at Palakkad on 7.9.2020 as per Annexure A4. She continued to work there till she is transferred as per Annexure A9 (dtd. 26.7.2021). According to the respondents she did not join at the initial place of posting i.e. Perambur and took child care leave and she joined only on getting transfer to Palakkad. At first she was posted on a temporary basis at Palakkad and considering her difficulties and since there was a permanent post available, she was given a permanent posting at the Railway Hospital, Palakkad as per order dated 5.7.2021 (Annexure A8). Subsequently on 26.7.2021 the 4th respondent had issued Annexure A9 transfer order for joining at Railway Hospital at Podanur.
8. According to the applicant she was expecting continuation at Palakkad as she was permanently posted there just before the transfer order. However, the applicant alleges that the respondents had arbitrarily transferred her without considering her difficulties and representation given earlier. She had also given fresh representation stating her difficulties at Annexure A10. Applicant also claims that she is entitled to a posting at Palakkad since her husband is working in Palakkad District Hospital in the State Service. According to the applicant the transfer guidelines clearly shows that the wife and husband should be posted at same place as far as possible. But going through the reply statement filed by the respondents it appears that the transfer of the applicant was necessitated only because of the transfer of one 7 Additional Chief Medical Superintendent to Madurai and the consequent transfer of the ACMS, Podanur as ACMS In-charge to Salem Division. Since Dr. Subaida A. Manikfan was transferred to Salem Division, the junior most doctor available nearby in the Railway Hospital, Palakkad i.e. the applicant was transferred to Railway Hospital, Podanur. The administrative exigency existed at that time was clearly narrated in the reply statement filed by the respondents. The applicant in this case has an all India transfer liability and she was posted conveniently in the Southern Zone and her difficulties were considered by the Railway authorities while she was given a transfer to Palakkad. But it does not mean that the applicant can continue there permanently. Transfer is an incident of service and the applicant cannot say that she should be posted at a particular place always.
9. Counsel for the respondents has invited our attention to the decision of the Hon'ble Supreme Court in Union of India & Ors. v. S.L. Abbas - (1993) 4 SCC 357. In this decision the Hon'ble Supreme Court held that the scope of judicial review in transfer is very limited and unless the order is malafide or is made in violation of statutory provisions, Courts/Tribunals cannot interfere in such transfer. Even in the decision cited by the counsel for the applicant in Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey & Ors. - 2004 (12) SCC 299, it was held by the apex court that transfer is an incidence of service and it is not to be interfered with by courts unless it is shown to be clearly arbitrary or visited by mala fide or infraction of any prescribed norms of principles governing the transfer. Yet in another decision cited by the applicant in Union of India v. Janardhan Debanath - 8 2004 (4) SCC 245 it was held by the apex court that no Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferrable post 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. It is further stated in the above decision that unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions, prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management as against such orders passed in the interest of administrative exigencies of the service concerned.
10. On a perusal of the above decisions of the Hon'ble Supreme Court it can be seen that if there is no mala fide or violation of any statutory provisions, the Tribunal cannot interfere with the transfer order passed by the employer. It is for the employer to take care of its necessity and in this particular case the respondents have clearly shown that there was an acute shortage of doctor at Railway Hospital, Podanur and the applicant who was the junior most at Palakkad Railway Hospital was transferred to the said hospital. The guidelines regarding husband and wife being posted at the same station is only a guideline and it is not mandatory in nature where exigency of public service demands.
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11. In view of the above we do not find any arbitrariness or illegality in the transfer order issued at Annexure A9. The respondents had considered the difficulties of the applicant and they had given her a transfer to Palakkad earlier. It is only because of the administrative exigency at Podanur that they have ordered transfer of the applicant to Podanur. Podanur is a very nearby place i.e. 50 Kms. away from Palakkad and there is frequent trains available between Podanur and Palakkad. Therefore, we absolutely find no reasons to interfere with the transfer order of the applicant issued at Annexure A9 in this case.
12. Accordingly, finding no merit the Original Application is dismissed. No order as to costs. The interim order of status quo stands vacated forthwith. Consequently, MA No. 180/914/2021 for vacating the interim order is closed.
(K.V. EAPEN) (P. MADHAVAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
"SA"
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Original Application No. 180/00434/2021
APPLICANT'S ANNEXURES
Annexure A1 - True copy of the relieving order NO.
EP/NAIR/CTRG/IRHS-2015 of IRHS probationers as
regards the applicant dated 13.5.2020 issued by the National Academy of Indian Railways, Vadodara to the 4th respondent.
Annexure A2 - True copy of the order No. HPB (O) 291/2020 dated 24.6.2020 passed by the 4th respondent.
Annexure A3 - True copy of the certificate dated 17.8.2020 issued by the Superintendent of Government District Hospital, Palakkad.
Annexure A4 - True copy of the order No. HPB (O) 431/2020 dated 7.9.2020 passed by the 4th respondent.
Annexure A5 - True copy of the order No. P(G)508/VII/R. RR dated 21.9.2020 passed by the 4th respondent.
Annexure A6 - True copy of the order NO. P(G)508/VIII/Dr. RR dated 27.11.2020 passed by the 4th respondent.
Annexure A7 - True copy of the representation dated 15.3.2021 submitted by the applicant before the 5th respondent. Annexure A8 - True copy of the order No. HPB(O) 362/2021 dated 5.7.2021 passed by the 4th respondent.
Annexure A9 - True copy of the order NO. HPB (O) 403/2021 dated 26.7.2021 passed by the 4th respondent.
Annexure A10 - True copy of the representation dated 29.7.2021 submitted by the applicant before the 5th respondent routed through the 6th respondent.
Annexure A11 - True copy of the medial records dated 25.8.2021 along with the medical certificate of the applicant.
Annexure A12 - True copy of the discharge summary dated 3.7.2021 issued to the applicant's father-in-law by Dr. Manoj's ENT Super Specialty Institute and Research Centre. Annexure A13 - True copy of the order No. E(NG) I-2009/TR/29 dated 2.2.2010 passed by the Deputy Director Esst. (N) of the Railway Board.
11Annexure A14 - True copy of the relevant pages of the policy No. 2020/E(GR)II/7/3 dated 15.10.2020 for zonal allocation and transfer of ADMO probationers recruited in IRHS through Combined Medical Services Examination.
Annexure A15 - True copy of the representation dated 29.7.2021 submitted by me before the 5th respondent and attested and forwarded by the 6th respondent.
Annexure A16 - True copy of the notification dated 14.8.2020 issued by the Deputy Director/Estt. (Gaz.Rectt.)-II, Railway Board. RESPONDENTS' ANNEXURES Annexure R-1 - True copy of the email dated 19.8.2020 submitted by the applicant.
Annexure R-2 - True copy of the email dated 26.8.2020 submitted by the applicant.
Annexure R-3 - True copy of the notification dated 14.3.2015 issued by the UPSC for combined medical services examination, 2015.
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