Central Administrative Tribunal - Delhi
Dr.D.P.Ray vs Municipal Corporation Of Delhi on 15 December, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.1152 of 2009
New Delhi this the 15th day of December, 2009
Honble Dr. Dharam Paul Sharma, Member (J)
Dr.D.P.Ray,
S/o Dr.N.K.Ray,
R/o H.No.D-11, Doctors Flat,
RBTB Hospital, Kingsway Camp,
Delhi-110009
.... Applicant
(By Advocate: Shri S.K.Gupta with Shri Umesh Singh)
VERSUS
Municipal Corporation of Delhi,
Through its Commissioner,
Town Hall, Delhi-110006
Director Health,
Municipal Corporation of Delhi,
Town Hall, Delhi-110006
Medical Superintendent,
Hindu Rao Hospital,
Malka Ganj, Delhi-110007
Dr. P.P.Singh,
Medical Superintendent,
Hindu Rao Hospital,
Malka Ganj, Delhi-110007
.. Respondents
(By Advocate: Shri Parveen Swarup)
O R D E R
This application is directed against the impugned order of transfer dated 12.01.2009 transferring the applicant among others from Hindu Rao Hospital to Chest Clinic, Jhandewalan. This order has been passed by the respondents in pursuance of the Tribunals order dated 16.2.2009 in OA-389/2009 directing them to dispose of the applicants representation against the impugned transfer whereby the said representation has been rejected.
2. The applicants case, in brief, is that he is a direct recruit from UPSC on regular basis. He was initially appointed as GDMO-II In February, 1996. He was further promoted as CMO in February,2005. He is now looking towards his further promotion to the grade of CMO (Non-Functional Selection Grade) w.e.f. 01.02.2009.
3. The applicant joined as GDMO-II at RBTB Hospital in February,1996. In April,1997 he was transferred to Hindu Rao Hospital. In Februry,2001, he went on lien to Ministry of Health, Directorate General of Health Services as Specialist Grade-II, CHS (Non-teaching Sub-Cadre) with duties governing the health programmes of the entire country related to the field of Pulmonary medicine and specialist advise thereof. In April,2001, he returned back to Hindu Rao Hospital and since then he was discharging his duties in Hindu Rao Hospital until issuance of the impugned order.
3. The applicant claims to be only doctor with the qualification in Pulmonary Medicine in Hindu Rao Hospital. He also claims to be only doctor who has started the concept of the Special Clinics with the Asthma Clinic. Besides, he was looking after the entire Internship Training Programmes with 125 Trainee Doctors who come from far of places to gain the final training. The applicants grievance is that there are so many doctors who are working in Hindu Rao Hospital for the last 25- 30 years. Some of those are only Diploma Holders and MBBS only. Some of them are husband and wife teams and some consist of family members. The respondents are said to have admitted in their letter No.3820 dated 9.01.2006 which was issued under the Right to Information Act to one Mr. Subrato Roy that 41 doctors are posted at one place for the last 25 years. Notwithstanding all these, the applicant has been subjected to hostile discrimination while transferring him malafidely to Chest Clinic at Jhandewalan. The applicant seeks to establish malafide in making transfer by mal-treatment meted out to him upon his transfer.
4. The applicant challenges the impugned order on the ground, inter alia, that it is violative of the provisions of the transfer policy/guidelines issued by the respondents. A copy of these guidelines is at Annexure A-25. According to para 4 of said policy, the tranfer exercise have to be conducted between the period 15th April and completed by 31st May. This period has been so-fixed so that there would be least disturbance in the working of the doctors concerned. There is nothing on record to show as to why these guidelines were not adhered to while making transfer in January,2009. The transfer policy further provides that while making transfer, the respondent should ensure that the officials having the longest stay are the first to be transferred i.e. the principles of seniority of tenure/stay in particular institutions/unit must be followed. The respondents have admitted that there are other doctors who are having longer tenure to stay in Hindu Rao Hospital but they have not been transferred in consonance with the said transfer policy and the applicant has been picked up under transfer policy arbitrarily for no reason. The impugned transfer is thus discriminatory and violative of fundamental rights of equality as enshrined under Articles 14 and 16 of the Constitution of India. It has further been submitted by the applicant that he had specifically been posted to Hindu Rao Hospital for starting the Asthma Clinic in view of his super specialty qualification of a post graduate in pulmonary and respiratory medicine. Besides, the Jhandewalan Chest Clinic has sanctioned strength of three doctors and all the three posts are already filled in. There is nothing on record to indicate if the requirement of Jhandewalan Clinic warrants additional sanctioned strength of that post. Hence it has been contended that the applicants impugned transfer is totally against non-existent post. There is also mention in the impugned transfer order by the respondent that if no vacant post exists, the transferee shall continue to draw the pay from the existing place of posting i.e. Hindu Rao Hospital. The total strength of doctors at Hindu Rao Hospital is 148 whereas presently available doctors are only 110. In view of these facts, there was no exigency of work at the place of posting or any other administrative exigencies in transferring the applicant. As a matter of practice, the Doctors who were entitled to CMO Non-functional Selection Grade(NFSG) are already deputed in big hospitals. The respondents themselves have admitted in their order dated 23.3.2009 that the Senior Doctors with P.G qualification ought to have been posted in big hospitals in public interest. Thus, the transfer of the applicant who is also a senior Doctor has been made violating the principles of transfer policy of the respondents.
5. In the reply, the respondents relied upon the administrative power to transfer any person in the exigencies of the administration. It has further been stated by the respondents that the posts can be varied by the Competent authority as per the need of the work in the concerned Clinic and it cannot be said that no one cannot be transferred in the absence of the sanctioned post as the number of posts can be decreased or increased by the competent authority as per the requirement of the Clinics. Most of the doctors whose list has been given by the applicant stating that they have been working in the Hindu Rao Hospital for the last 20-30 years , have been working as HOD/HOU in the Hindu Rao Hospital in different specialized disciplines and hence their services are required in the Hindu Rao Hospital in large public interest. The applicant has been transferred against the vacant post in exigency of work at Jhandewalan Clinic.
6. The applicant has filed additional affidavit to bring on record the information furnished by the respondents to one of his colleague, namely Dr. R.R.Gautam under the RTI Act. Para 2 of the said affidavit reads as follows:-
2. That the colleague of the applicant Dr. R.R.Gautam has sought the R.T.I. from the respondent Vide IDNo.10/09 which has been replied vide reply No.D/Addl. DHA (TB)/20089/239 dated 09/07/2009 and thereby the respondent has admitted that the position of total number of medical Officer (GD) working in all Chest Clinic as on 12/01/09 is that the total number of CMO and CMO NFSG are sixteen in number and in Jhandewalan Chest Clinic there were three sanctioned posts (one Senior Medical Officer/CMO/CMO NFSG and two post of GDMO II/I), and against these three posts three doctors namely Dr. D.K.Garg, Dr.Vinod Gupta and Dr. A.K.Vasisht are working as on 12.01.2009, which shows there is no vacant post. However, only one post of CMO/Sr. Doctor is available, against which Dr. D.K.Garg is already working which show that the transfer of the applicant is nothing but a malafide exercise, neither it is in public interests nor on administrative ground, nor in exigency of work but it is an artificially created need by the respondents. A true copy of the said RTI is enclosed herewith as Annexure AA-1).
7. By replying to the aforesaid additional affidavit, the respondents (MCD) have brought on record that the applicants case has been referred to the Vigilance for investigation in the circumstances of the case.
8. The applicant has filed rejoinder thereby seeking to bring on record of a copy of order dated 06.05.2009 passed by a Co-ordinate Bench of this Tribunal in OA-289/2009 Dr. R.N.Bansal Vs. Municipal Corporation of Delhi whereby the transfer order of his colleague Dr. R.N.Bansal from Hindu Rao Hospital to Rajan Babu Hospital has been quashed and set aside. Vide the same transfer order, applicant has been transferred from Hindu Rao Hospital to Jhandewalan Chest Clinic. It has further been submitted by the applicant that one post of Senior CMO in Jhandewalan Clinic was vacant against which the applicant could have been transferred. Since the said post had already been filled up and there was no vacancy of said post, the transfer of applicant is bad in law in view of case of R.Sudhakar Vs. M/s Indian Immunological Hyderabad (1997 (2) ATJ 405, wherein it has been held that An Officer holding a particular rank/position can be transferred and posted only to a post which is equivalent to that post in all respects. Otherwise, it amounts to affecting the status held by the incumbent. This judgment has been followed in the case of R.N.Bansal, referred to above.
9. The respondents have filed an additional affidavit wherein the averments made by the applicant, as referred to above, have been denied for want of information and not on facts.
10. At the hearing, Shri S.K.Gupta, learned counsel for the applicant referred to the copy of noting pertaining to applicants transfer at Page 128 of paper book. It is stated therein that after discussion with Addl. Commissioner (Health) for revamping the functioning of Hindu Rao Hospital which is the premiere Institute of MCD, certain administrative measures need to be taken. As a corollary to this, five doctors have been transferred with the stipulation that in case there is no vacant post, the transferee shall continue to draw salary from his existing place of posting. It is strongly urged that in the noting, no requirement of Specialist at Chest Clinic Jhandewalan has been referred to warrant transfer of applicant to that Clinic. He further referred to the order dated 23.3.2009, passed on the representation of the applicant pursuant to this Tribunals direction in OA-389/2009 wherein there is no mention of taking administrative measures for revamping of Hindu Rao Hospital in respect of applicants transfer. He has then referred to Annexure A-9 which is a copy of representation dated 19.01.2009 wherein the applicant had requested that the respondents should retain him in Hindu Rao Hospital. The said order has been passed on a premonition as can be seen from the fact that most of the doctors are working in Hindu Rao Hospital for the last 20-30 years. The respondents have turned down the points raised by the applicant on the ground that most of the doctors, who have been working in Hindu Rao Hospital, are HOD/HOU in different disciplines. It has been strongly urged by the learned counsel Shri Gupta that the doctors who are at present HOD/HOU, have been working throughout their careers in Hindu Rao Hospital and have been retained in the same hospital. Though they may be holding the position at present but they have been working in the Hindu Rao Hospital before assuming this position. The order is scrupulously silent as to why the doctors who were not HOD/HOU have been retained in Hindu Rao Hospital for a longer period than that of applicant. The respondents have deliberately and willfully sought to have camouflaged the reality by stating that most of the doctors have been working as HOD/HOU in Hindu Rao Hospital in different specialized disciplines. Thus, the impugned order is bad in law and there is malice intention in making the transfer.
11. Shri Gupta has drawn my attention to the Office Circular on the Subject: Transfer Policy for Health Department,2008 at page 130 of the paper book. The preamble of said policy clearly states that the said policy had been formulated in 1999 in the public interest and in the interest of Organization as well as interest of officers/officials providing them an opportunity to have necessary experience. The objectives of this policy are to maximize the overall satisfaction, level of employees, subject always to the paramount need to protect public interest and administrative efficiency of the organization and to deploy available staff in an optimum manner so that inter alia, employees are evenly distributed across the whole region with special regard to the interest of public in the priority areas. The learned counsel for the applicant made specific reference to Clause 4 of the Transfer Policy wherein, under the heading Basic Principles, it has been provided that as far as possible exercise for general transfer of the staff should be initiated on 15th April and completed by 31st May so that new incumbents get themselves familiarized with the working of the department where they are posted and are able to achieve their target in the succeeding year in phased manner. It has further been provided that while undertaking the exercise of transfer of staff, it must be ensured (Emphasis supplied) that the official having the longest stay is the first to be transferred. In other words, the principle of seniority of tenure/stay in particular institution/units must be followed (Emphasis supplied) while transferring the staff. In the impugned order, a part of this transfer policy has been given a go-bye without any proper justification. Neither the period prescribed in this regard has been adhered to nor the principle of longest stay in making the transfer first has been followed. On the other hand, the persons having longer tenure in Hindu Rao Hospital have been retained against the principle contained in transfer policy. In this regard, Shri Gupta referred to Annexure A-6 at page 48 of paper book which is a list of doctors who are working in Hindu Rao Hospital, MCD for more than last 20 years. This list contains names of 61 doctors classified under different headings, such as A) Doctor couples and Joint families for about 30 years; B) other doctors belonging to Specialist Sub-Cadre; C).Adhoc appointed doctors (GD), regularized w.e.f. 27.6.1991 and D) other doctors. A plain reading of the said list reveals that while there are a number of doctors who are HOD/HOU in Hindu Rao Hospital in specialized disciplines, there are still others who are not holding the said posts but yet have been retained in the hospital and the applicant has been singled out for transfer.
12. Shri Gupta then submitted that Jhandewalan Clinic has three sanctioned posts; one of CMO, the second one GDMO-I and last one GDMO-II. Since the post of CMO, Jhandewalan Clinic had already been filled up, the applicant could not be appointed to this post. Admittedly, the post is not vacant as can be seen by the documents that have been filed by the applicant. The respondents are not right in stating in their reply at page 137 of paper book that applicant is wrong in alleging that the three sanctioned posts at the Jhandewalan Clinic are not vacant and, therefore, he cannot be transferred to the Clinic. It has further been stated that the competent authority can increase or decrease the number of vacancies at the clinics as per requirement of the clinics. Shri Gupta has strongly urged that there is nothing on record to indicate the strength of posts at Jhandewalan having been increased from three to four. There is no increase or decrease in the post against which the applicant is deployed at Jhandewalan. He further stated that the post of CMO is in pay scale Rs.12000-16500/-; the post of GDMO-I in thepay scale of Rs.10000-15200/- and the post of GDMO-II is in the pay scale of Rs.8000-13500/-. All the three sanctioned posts at Jhandewalan Clinic, specially of CMO are duly filled in. Though the applicant would work at Jhandwalan Clinic, it is stated in the order dated 23.3.2009 that he may draw his pay from Hindu Rao Hospital. As the post of CMO is being held by Dr. D.K.Garg, the transfer of the applicant is liable to be quashed on this very ground on the strength of order of this Tribunal in R.N.Bansals case as well as R.Sudhakar, relied upon by this Tribunal in R.N.Bansals case referred to above.
13. The learned counsel for the applicant further submitted that the respondents have relied upon Clause 10 of the Transfer Policy according to which the MCD reserves the right to transfer any employee in public interest considering the exigencies of work and need of any institution/organization. It further spells out that the MCD also reserves the right to allow an officer to work at any place in public interest beyond the period prescribed in the transfer policy. The applicants counsel contended that the records pertaining to transfer do not indicate that the respondents have made this transfer in exercise of powers given under the transfer policy. He has relied upon the case of Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others(1978 (1) SCC 405) wherein while dealing with the judicial review it has been held by the Honble Supreme Court that the action has to be adjudged by the reasons stated while making the order and supplementary reasons in the shape of affidavits to be excluded. He referred to Para 8 of said judgment which reads as follows:-
The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bade in the beginning may, by the time it comes to Court on account of challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose.J. in Commissioner of Police, Bombay Vs. Gordhandas Bhanji (AIR1952 SC 16).
Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
14. Transfer is a normal incidence of service. The right to make transfer in the exigencies of service lies exclusively within the domain of the concerned administrative authority. But this right has to be exercised fairly and justly for the purpose the right has been conferred and not for any alien purpose. Like any other administrative power, administrative decisions on transfer are also subject to judicial review. However, the judicial review of such an action is of limited scope. The courts and tribunals do not sit in appeal over the decisions of administrative authority on transfer. It is in fact confined to the decision making process. Such decision making process may be vitiated on account of malafides or any infraction of law. Thus, any transfer made arbitrarily may not be sustainable in law for the reason that arbitrariness, being opposed to reasonableness, is an antithesis to law. There is neither any exact definition of arbitrariness nor is there any strait jacket formula for it. It ultimately depends on the facts and circumstances of each case. Nonetheless, arbitrary action can be described as one that is irrational and not based on sound reason. To put in other way, an arbitrary action is one that is unreasonable. Any decision, whether administrative or otherwise, if taken without considering the relevant facts or, as the case, by taking into consideration irrelevant facts, would indeed be an arbitrary decision and violative of the mandate of Article 14 of the Constitution. In order to avoid arbitrariness in administrative decisions, too often administrative guidelines are evolved with a view to inculcate an element of transparency and uniformity in the decision making process. These guidelines are essentially for the purpose of guidance of the administrative authorities. As such, these do not confer any enforceable right on any one. Nevertheless any deviation from such guidelines, coupled with other circumstances, may help in ascertaining if the administrative decision so taken is vitiated by the vice of arbitrariness. Thus, an act which is discriminatory is liable to be labelled as arbitrary. Extending the benefit to one while denying the same to other belonging to the same class would also be arbitrary and as such bad in law.
15. The respondents have framed a transfer policy. The avowed objective of the said policy is threehold, viz. (i) to deploy available staff in an optimum manner, (ii) to maximize the overall satisfaction of employees, and (iii) to protect the need to protect public interest and administrative efficiency of the organization. With these objectives, in mind, the policy proceeds to evolve certain basic principles that will govern transfers in the Health Department of the respondents. One such principle is that exercise for general transfer of the staff should be initiated on 15th April and completed by 31st May. The underlying reason is that this would enable the new incumbents to get themselves familiarized with the working of the department where they are posted and to achieve the targets in the succeeding year in a phased manner. Thus, a general principle is laid down in the matter of transfer. The principle is not absolute so as to say that transfer at any other time of the year cannot be made. But, while making transfer at any other time, the authority concerned is expected to take a conscious decision for deviation from the basic principle referred to above and preferably state the reasons for doing so in order to avoid any adverse criticism.
16. Another basic principle that has been evolved by the transfer policy is that the persons having longer tenure at a place should be transferred first than those having shorter tenure. The policy thus enjoins upon the concerned authority to ensure that the person having longest stay is the first to be transferred. In other words, the principle of seniority of tenure/stay in particular institutions/units must be followed while transferring the staff. The policy makes suitable provisions for special circumstances and administrative exigencies and provides for suitable relaxation. There is of course an omnibus clause reserving with MCD to transfer any person at any time to any place in public interests. The policy also warns against any external pressure for seeking any transfer against the rules which would be viewed very seriously as it is against the CCS Rules and may invite disciplinary action. It may thus be seen the transfer policy seeks to strike a balance among the administrative exigencies, the employees interest and the public interest. The provisions thereof are required to be followed as a matter of general rule. Any deviation thereof would be by way of an exception and should invariably be coupled with reasons therefor. Any transfer order against the principles enshrined the transfer policy, in the absence of valid reasons, may be viewed as arbitrary and liable to be quashed as such. It is the basic principle of rule of law and also good administration that even the administrative action should be just and fair. The policy of transfer too is devised towards that end. Though limited in its scope, in so far conferment of any enforceable right is concerned, the transfer policy is generally viewed as fair and reasonable and uniformally applicable to all concerned and thereby provided much needed transparency and also help in avoiding allegations of arbitrariness, discrimination and malafide. It needs no further emphasis that when government departs from its own avowed policy and issues orders of transfers in an unusual manner, then people get opportunity to make adverse criticism of such departures by alleging colourable exercise and malafide etc. All this can be very well avoided if a uniform policy is laid down and scrupulously followed.
17. Ironically, both the parties take shelter of the policy guidelines on transfer in this case. While the applicant assails the impugned transfer order being violative of the said policy guidelines, the respondent on the other hand, seeks support from the said policy guidelines in maintaining the legality of the said order. I have very carefully analysed the rival contentions of the parties in this regard in the light of the relevant records on the subject.
18. I have given my careful consideration to the respective submissions made by the learned counsel for the parties. I have also carefully gone through the record of the case.
19. At page 128, there is a copy of noting recorded by ADC (Health) after having discussions with the Addl. Commissioner (Health) which would show that in order to revamp the functioning of Hindu Rao Hospital, which is a premiere institute of MCD, certain essential administrative measures were found to be taken necessary for the purpose and hence the impugned transfer of the applicant has been proposed from Hindu Rao Hospital to Chest Clinic, Jhandewalan. The said noting does not contain anything indicating the manner and the extent to which the revamping of Hindu Rao Hospital requires the proposed transfer of the applicant to be made. The noting is scrupulously silent regarding violation of its own transfer policy that is involved in the impugned transfer. At the hearing of the case, the respondents were not able to put forth any details of the proposed revamping of Hindu Rao Hospital and how the impugned order of transfer was part of such revamping proposal. No document was brought on record by respondents showing if any proposal for revamping the Hospital was under consideration of the authority and the details thereof.
20. Furthermore, Chest Clinic Jhandewalan to which the applicant has been transferred from Hindu Rao Hospital, has full strength of staff as a CMO is already in position of said Clinic. There is no reference in the noting referred to above as to why another CMO is required to be posted at Chest Clinic, Jhandewalan. There is no material in the said noting indicating if requirement of Chest Clinic Jhandewalan warrants any increase in the said Clinic. Nor any such decision has been taken to increase the strength of Chest Clinic Jhandewalan. The noting does not indicate as to how the applicant would be replaced vis-`-vis the existing CMO in the Chest Clinic Jhandewalan upon his transfer thereto. Obviously, there can be only one CMO. If CMO is already in position, another person in the rank of CMO cannot hold equivalent ranking and obviously the applicant would be having a lower ranking unless the transfer order itself provides a higher ranking to the applicant therein. Such action is not sustainable in law in view of the decision of R.Sudhakar Vs. M/s Indian Immunological Hyderabad which has been referred to above. We find force in this from the decision of a Coordinate Bench of this Tribunal in the case of Dr. R.N. Bansal Vs. Municipal Corporation of Delhi(OA-289/2009 decided on 6.5.2009) wherein reliance has been placed on the case of R.Sudhakar (supra). It may be relevant to note in this regard that Dr. R.N.Bansal has also been transferred vide the same transfer order dated 12.01.2009 which has been impugned in these proceedings. On the other hand, ADC (Health) was conscious of non-existence of the post at Jhandewalan Clinic yet the post has not been transferred to Jhandewalan Clinic and the applicant has been allowed to draw salary from his existing place of posting.
21. Nor there is anything in the said noting indicating exercise of extra-ordinary power as contained in Clause 9 and 10 of the transfer policy empowering the respondent to make any transfer de hors the conditions contained in the said policy. If the impugned transfer has not been made in exercise of Clause 9 and 10 of the Transfer Policy, it was not open to the respondent to take such action which has been challenged. Same is in the case with regard to the respondents power to increase or decrease number of posts in exigencies of administration. If the transfer has not been made in exercise of this power, the validity of the impugned action has to be adjudged on the basis of facts existing at the time of making of transfer and the facts prior to and subsequent to transfer would not be allowed to be referred to in support of the impugned transfer order. In support of this, reliance has been placed Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others(1978 (1) SCC 405).
22. The impugned order as at Annexure A-2 (page 41 to 43 of the paper book) also does not deal with the alleged violation of the basic principle of seniority in the matter of impugned transfer as envisaged in the respondents own policy guidelines on transfer on its own merits. The applicant has given details of the officers who have been working in the Hospital for the last 20-30 years who should have been transferred first before making the transfer of the applicant in terms of the policy guidelines on transfer. The impugned order has dealt with this aspect of the matter in a very slipshod manner when it states that most of these doctors (and not all of them) have been working as HOD/HOU in the hospital. It does not state as to why those of the doctors who are not HOD/HOU are not subjected to transfer. Furthermore, even these HOD/HOU have not come to occupy these positions overnight. How come that they have not subjected to routine periodical transfer throughout their respective careers since the hospital is one of the biggest general hospitals, services of senior doctors are required thereof in public interest. The list at Annexure A-6 contained particulars of at least 25 CMOs who are adhoc appointed (GD) regularized w.e.f. 27.6.1991. However, the fact remains that the impugned order does not claim in unambiguous terms adherence to the principle of seniority while making the impugned transfer order. Instead, it seeks to justify the deviation for reasons that are alien to the impugned transfer. It is conspicuously silent as to basis on which the applicant has been picked up for the transfer in question de horse his seniority and especially when the post of CMO at Jhandewalan Clinic stands duly filled in by a qualified doctor of the equivalent rank and also when the sanctioned strength of the clinic is neither duly increased nor the post held by the applicant has been duly transferred. To add to it, the powers that are involved in support of the transfer are not even referred to while making the impugned transfer. The impugned order leaves much to be desired in this regard. For the same reason, the applicant who is relatively senior, should have been retained at the Hindu Rao Hospital as there are number of juniors to the applicant who have been retained in that hospital. The grievance of the applicant is that he has been arbitrarily picked up for transfer while those are senior as well junior to the applicant have been retained.
23. Neither from the pleadings of the respondents nor their submissions at the hearing, any plausible explanation could be gathered as to why the impugned transfer has been made ignoring the period contained in the transfer policy while undertaking the transfer exercise namely between the period 15th April to 31st May.
24. In the aforesaid premises and the reasons stated above, I do not find the impugned transfer order to be sustainable in law and accordingly I quash and set aside the same. OA is accordingly allowed. No order as to costs.
(Dr. Dharam Paul Sharma) Member(J) /usha/