Central Administrative Tribunal - Ahmedabad
Dr Rohit Vala vs Employees State Insurance Corporation ... on 14 November, 2024
:: 1 :: O.A.No.376/2024
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
OA No.376/2024
Dated this the 14thNovember, 2024
CORAM : Hon'ble Mr. Jayesh Bhairavia, Member (J)
Hon'ble Dr. Hukum Singh Meena, Member (A)
Reserved On :26.09.2024
Pronounced On :14.11.2024
Dr. Rohit Vala
S/o.Devabhai Vala
Age about 41 years
Residing of 19, Shreedhar Baugh
Opp. Shivpujan Tenaments
Nikol, Naroda, Ahmedabad - 380 008
Working as Chief Medical Officer
Office of the Medical Superintendent
ESIC Model Hospital Bapunagar,
Ahmedabad 380 024.
Resident of A-602, Kens Heights
Opp. Sadguru Vatika Bunglows
B/h. Gangotri Circle, Nikol
Ahmedabad - 382 350.......................... Applicant
(By Advocate : Mr. A.L.Sharma, Ms.Himanshi Balodi )
VERSUS
1. Employees State Insurance Corporation
Represented by Director General
Panchdeep Bhawan, CIG Road,
New Delhi - 110 002.
2. Chairman,
Employees State Insurance Corporation
Ministry of Labour & Employment,
Shram Shakti Bhawan, New Delhi - 110 001.
3. Medical Commissioner
Medical Administration
Panchdeep Bhavan, CIG Road,
New Delhi - 110 002.
4. The Medical Superintendent
ESIC Model Hospital Bapunagar
Ahmedabad 380 024. .................... Respondents
(By Advocate : Mr. S.D.Vasavada )
:: 2 :: O.A.No.376/2024
O R D E R (ORAL)
Per : Hon'ble Dr. Hukum Singh Meena, Member (A)
The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 against the transfer Order No.65 dated 20.05.2023 (Annexure A/2) whereby the applicant has been transferred from ESIC Model Hospital, Bapunagar to ESIC Indore.
2. The applicant has sought for the following relief :
"(A) The Hon'ble Tribunal be pleased to quash and set aside recommendation of the Transfer Committee No.A-22013/15/2023-
MED-VI, Annexure A-1 and Order No.65 dated 20.05.2023 (Annexure A-2) and order dated Nil-06.2024 (Annexure A-3) as illegal, arbitrary, unconstitutional, contrary to settled legal position and in utter violation of principles of natural justice, null and void; (B) Be pleased to allow this application with costs and be pleased to quantify the cost.
(C) Be pleased to grant such other and further reliefs as may be deemed just and proper by the Hon'ble Tribunal in the facts and circumstances of the case."
3. The brief background of the case is as under :
Mr. A.L.Sharma, learned counsel for the applicant submits that the applicant was appointed as a Insurance Medical Officer (IMO) Grade-II w.e.f. 11.02.2010 at ESIC Model Hospital at Bapunagar in Pay Band-3, Rs.15600- 39100/- with Grade Pay of Rs.5400/-. Thereafter, the applicant was given the benefits of the financial upgradation after completion of four years and posted as IMO Grade-I vide letter dated 02.05.2015 in the grade of Rs.6600/- in DACP (Dynamic Accrued Career Progression) w.e.f. 03.03.2014. Subsequently, the applicant was promoted to the post of Chief Medical Officer and granted financial upgradation at Level-12 w.e.f. 03.03.2019.
4. Learned counsel for the applicant argues that the respondent No.1 had issued Transfer Policy dated 20.06.2022 (Annexure A/4) for transfer of Doctors posted in ESI Corporation wherein para 4.3 of the :: 3 :: O.A.No.376/2024 said policy provides for inviting Online application from the Doctors due for transfer to submit their choice stations/ institution for transfer who had completed tenure of six years and extended period of three more years after approval of the competent authority. Learned counsel for the applicant further stated that as per the provision contained in para 3 of the said transfer policy, the Medical Officers may give their choice of medical institution/ stations as option for posting and, if, no such options are received from the eligible Medical Officer, such Medical Officer shall be considered for transfer / posting as per para 3.2 of the said policy of ESIC. In view of this, the applicant had submitted five choice of posting through Online mode on 27.12.2022. However, the applicant was transferred to ESIC Hospital, Indore vide order dated 20.5.2023 which is in violation of the various provisions of the policy, special reference to para 7.4 wherein there is an exclusion provisions that doctors who are seniors in terms of posting/ place of posting will be transferred out first.
However, the applicant has been transferred out wherein Medical Officer who are seniors to him were accommodated in the same station. Aggrieved by the order of transfer, the applicant has given his representation to the Transfer Grievance Redressal Committee and National Litigation Committee for redressal of his grievance. The representation of the applicant was disposed of by the Transfer Grievance Redressal Committee on 20.05.2023 (AnnexureA-2) rejecting the representation without giving any cogent reasons. Being imminent possibility of relieving, the applicant has filed the OA bearing No.170/2023 before this Tribunal wherein interim order dated 14.06.2023 was granted in favour of the applicant. The relevant para of the order is mentioned as below :
"12. Under these circumstances, without going into the merits, the present Original Application is disposed of with following direction :
(A) The competent authority under the National Litigation Policy shall decide the pending representation dated 08.06.2023 within a period of 30 days from the date of receipt of the certified copy of this order by passing reasoned and speaking order and till :: 4 :: O.A.No.376/2024 the representation is decided interim relief dated 14.6.2023 shall remain operative."
5. Subsequently upon the direction of this Tribunal, the competent authority had disposed of the representation vide Order MO Nil - June, 2024 without assigning any reasons which is illegal, arbitrary, unconstitutional, contrary to settled legal position and in utter violation of principles of natural justice. Being aggrieved with the above decision of the Transfer Grievance Redressal Committee and National Litigation Committee, the applicant has filed this OA.
6. The applicant has strongly opposed the impugned order and raised objections based on his transfer against provisions in the paras 7.4 and 4.4 of the Transfer Policy. According to para 7.4 of the Transfer Policy of ESIC-2022, it stipulates that the seniority of the Doctors in the institution and / or station from which such transfer is being proposed shall be the primary criteria for selecting Doctors for transfer. In other words, Doctors posted at an institution and / or station for a longer period shall be considered for transfer out first. Doctors posted for the longest period at an institution and/ or station will be considered first for posting to less preferred institution and / or station in the zone of his posting. It is relevant to mention that Doctors/ Officer mentioned in Serial No. 288, 289, 293 and 295 are senior having longer stay in the station. However, they have been accommodated and given transfer within the station whereas the applicant being junior, in terms of stay, has been transferred out of the zone, which is contrary to the provision of para 7.4 of the above mentioned policy.
7. Learned counsel for the applicant further argues that there is gross violation of the provisions of the Transfer Policy dated 20.6.2022. As per para 4.4 of the said policy, it provides that all cases of transfer will be dealt and decided keeping in view the weightage :: 5 :: O.A.No.376/2024 points secured under Priority Matrix which is annexed to the said policy.
8. In support of the arguments, learned counsel for the applicant relied upon the case of K.P.Prasad v/s. Union of India, reported in 2004 (3) ATJ 97 wherein it is mentioned that when the transfer is claimed to have been made in administrative exigency, the authority are enjoined to show that there has been administrative exigency in transferring the applicant or the decision to transfer him has been taken in public interest after due application of mind to all the relevant facts. He also refers the case of Harpal Singh Kashyap V/s. NCT of Delhi & Others reported in 2005 (2) ATJ 124 and case of T.S.Soni v/s. the Special Secretary to the NCT Government of Delhi reported in 2003 (3) ATJ 602. Learned counsel for the applicant also relied upon the common order dated 19.5.2024 passed in the case of Dr. G.Sugapriya v/s. Union of India in OA No. 503/2024 and other connected OAs. The applicant has also raised question on the constitution of the Transfer Grievance Redressal Committee. As per the clause 12(3) of the Transfer Policy, instead of including "Medical Commissioner" from the Headquarter office as a member, the "Zonal Medical Commissioner" was included. Thus, the constitution of the Transfer Grievance Redressal Committee was in violation of the provisions of the said policy.
9. Learned counsel for the applicant further submits that the saidTransfer Policy of the ESIC has been challenged by ESIC Union Punjab Region before the Chandigarh Bench of this Tribunal by way of OA No.622/2024 wherein the Chandigarh Bench vide order dated 12.6.2014 stayed the operation of the transfer order dated 11.3.2024 qua the applicants therein.
10. Per contra; Mr. S.D.Vasavada, learned counsel for the respondents by filing reply opposed the contentions raised by the applicant in this OA. He submits that ESI Act being benevolent legislation has been enacted by Parliament under Entry 23, 24 of List :: 6 :: O.A.No.376/2024 III of the 7th Schedule of Constitution of India, which provides that Parliament has the power to make law for the purposes of social security, social insurance and numerous medical benefits to workers/ employees. It is submitted that the main object of the ESIC enshrined under Article 39 (c) (d), Articles 41 and 43 of the Constitution of India and as per the social state directive policy and social welfare measure rendering socio economic justice to those who in hey-day of their life ceaselessly toiled for the employers on an assurance that after their retirement / retrenchment, they would not be left in lurch. It is also relevant to mention that ESI Act is made with a social welfare objectives in mind and to protect the interest of workers / employees by offering high quality of education like doctor to family members of IPs at very affordable fees. Further, more than 3.25 crores insured persons with more than 12.5 crore beneficiaries are covered under the ESI Scheme therein. Therefore, being Statutory Organization, it is the duty of the ESIC to satisfy need of each and every person so that they would also get the chance to work for benevolent scheme of ESIC. Hence, the ESIC is fully empowered to transfer any of its employees to anywhere in India according to the requirement of public interest as the basic scheme of the ESI Act is to serve general public in India. Learned counsel for the respondents further submits that the applicant has suppressed the fact that he was transferred and relieved on 29.8.2024 and said letter has been issued and received by applicant on the same day. This vital information was not disclosed while hearing on 20.09.2024. He further submits that the applicant has also mis- quoted the judgment of the Madras and Mumbai Benches of this Tribunal. It is submitted that the order passed by the Madras Bench of this Tribunal was challenged before the Hon'ble High Court of Madras and the Hon'ble High Court of Madras granted status quo with regard to service condition and the said matter is pending for adjudication wherein the order passed by the Mumbai Bench of this Tribunal is not applicable to the applicant. Learned counsel for the :: 7 :: O.A.No.376/2024 respondents has also relied on the judgment of S.C.Saxena v/s. Union of India wherein it is mentioned as under :
"In the first place, a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems."
11. Learned counsel for the respondents also submits that the representation of the applicant has been duly considered by the National Litigation Committee and Transfer Grievance Redressal Committee. He also refers to the clauses 3.2 and 13.7 of the Transfer Policy. Para 13.7 states that :
"Directly Recruited Insurance Medical Officers (IMO Gr.II)/ specialists / teaching faculty shall be posted in ESIC Hospitals/ Institutions based on their merit after considering transfer request from the serving Medical Officers of Corporation from stations where these Doctors are proposed to be posted, subject to the provisions of this transfer policy."
11.2 He further submits that implementation of the Transfer Policy cannot be exercised according to the convenience of the applicant. In support of his claim, he has relied on the judgment passed by the Hon'ble Apex Court in S.K. Nausad Rahaman vs. Union of India, reported in (2022) 12 SCC 1. The relevant portion of the said judgment extracted as follows (Paras 24 & 25):
"24. First and foremost, transfer in All India Service is an incident of service. Whether and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or for that matter, a vested right to claim a transfer or posting of their choice.
25. Second, executive instructions and administrative directions concerning transfers and posting do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration."
In view of the above, learned counsel for the respondents prays for dismissal of the OA.
12. Heard learned counsel for the parties at length and perused the material available on records.
:: 8 :: O.A.No.376/202413. Learned counsel for the applicant has relied on the paras of 7.4 and 7.7 of the Transfer policy and also reiterated the order passed by the Chandigarh Bench of this Tribunal in case of ESIC Union Punjab Region V/s. ESI Corporation whereby the transfer order of doctor being executed under Transfer Policy has been stayed whereas the learned counsel for the respondents relied upon paras 3.2 and 13.7 of the Transfer Policy. He also reiterated that an IMOs of ESIC have All India transfer liabilities. Further, the grievance of the applicant had also been considered by National Litigation Committee and Transfer Grievance Redressal Committee after taking all parameters into consideration. He also submits that applicant has suppressed material fact that before schedule date of hearing, he was relieved and order was received by him on 29.8.2024.
14. It is important to mention that before finalization of the Order to be passed in this case, learned counsel for respondents has produced an order of Dy. Director on behalf of ESIC Indore, received on 05.11.2024 wherein, it has been mentioned that (Dr.Rohit D. Vala) the applicant herein had joined ESIC at Indore on 25.10.2024.
15. Considering the aforementioned statement, without going into the merits of the case, we dispose of the same since the applicant has already joined at the place of posting by granting liberty to him to submit his detailed representation to the competent authority and if any such representation is received by the competent authority, the same shall be considered and disposed of in accordance with law and rules on the subject.
16. There shall be no order as to costs.
(Hukum Singh Meena) (Jayesh Bhairavia)
Member (A) Member (J)
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