Central Administrative Tribunal - Jabalpur
Vijay Kumar vs M/O Labour on 20 October, 2023
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O.A.No. 200/00543/2021
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/00543/2021
Jabalpur, this Friday, the 20th day of October, 2023
HON'BLE SHRI JUSTICE AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER
HON'BLE SHRI KUMAR RAJESH CHANDRA, ADMINISTRATIVE MEMBER
Vijay Kumar S/o Shri Satyanarayan Yadav aged about 40 years
Occupation CSSD Technician Employees State Insurance
Corporation Model Hospital Indore (MP) R/o 5/18 Type-II Dr. Colony
Nanda Nagar, Indore (MP) 452011 -Applicant
(By Advocate -Shri Amardeep Gupta)
Versus
1. Union of India, Through its Secretary Ministry of Labour and
Employment Panchdeep Bhawan CIG Marg, New Delhi 110002
2. Director General Employees State Insaunce Corporation
Panchdeep Bhawan CIG Marg New Delhi 110002
3. Medical Commissioner Headquarters' Office Employees State
Insurance Corporation Panchdeep Bhawan CIG Marg New Delhi
110002
4. Regional Director Employees State Insurance Corporation
Employees State Insurance Corporation medical College and
Hospital Bihta Patna (Bihar) 801103
5. Regional Director, Employees State Insurance Corporation
Employees State Insurance Corporation Hospital Nanda Nagar,
Indore (MP) 452011
6. Medical Superintendent Employees State Insurance Corporation
Medical College and Hospital Bihta Patna (Bihar) 801103
7. Medical Superintendent Employees State Insurance Corporation
Hospital Nanda Nagar, Indore (MP) 452011 - Respondents
(By Advocate -Shri Gaurav Sharma)
(Date of reserving the order:25.08.2023)
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O.A.No. 200/00543/2021
ORDER
By Justice Akhil Kumar Srivastava, JM;
Through this Original Application applicant has prayed for the following reliefs:-
8(i) To call for entire material & record from the possession of respondents for its kind perusal;
(ii) To quash and set aside the office order No.91/2021 dated 09.06.2021 (Annexure A/1)
(iii) To command and direct the respondent authorities to transfer applicant to the post of OT Assistant to ESIC MC & H Bihta in terms of the office order No.56/2021 dated 22.04.2021 along with all consequential benefits;
Or alternatively To command and direct the respondent authorities to transfer applicant to the post of CSSD Technician to ESIC MC & H Bihta along with all consequential benefits;
(iv) Grant any other relief/s which this Hon'ble Tribunal deems fit and proper;
(v) Award the cost of the instant lis to applicant."
2. The facts narrated by the applicant is that he was initially appointed as OT Assistant on 10.11.2009 in the Employees State Insurance Corporation Hospital Nanda Nagar Indore and he was promoted to the post of CSSD Technician on 15.07.2015. Thereafter applicant had applied for inter-regional transfer from ESIC Hospital Indore to ESIC Medical College and Hospital Bihta Patna Bihar (for brevity 'ESIC MC & H Bihta') Page 2 of 7 3 O.A.No. 200/00543/2021 and his name was found place for consideration for inter regional transfer vide circular dated 31.01.2017 (Annexure A/2). Again vide Circular dated 18.04.2018 list of inter regional transfer to be considered as on 31.08.2021 was published wherein applicant's name was at serial no.14. In response to circular dated 20.01.2021 (Annexure A/4) respondents invited options for transfer/posting of nursing and paramedical staff at ESIC Institutions located at Rudrapur, Raipur and Korba, Angul, Bihta and Alwar, applicant submitted his application dated 21.01.2021 (Annexure A/5) for inter regional transfer to Bihta. The applicant was transferred to ESIC MC & H, Bihta vide order dated 22.04.2021 (annexure A/6). Vide another circular dated 28.05.2021 (Annexure A/7) applicant's name was shown at Serial No.166. On 09.06.2021 (Annexure A/1) applicant's transfer from ESIC Indore to ESIC, MC & H, Bihta was cancelled without assigning any reason. Applicant preferred representation dated 14.6.2021 (Annexure A/8) but no decision was taken by the respondents. Hence this Original Application. 2.1 Learned counsel for the applicant contended that his transfer was cancelled on the ground that he was working on the post of CSSD Technician and he cannot be accommodated to the post of OT Assistant which is a lower post whereas One Page 3 of 7 4 O.A.No. 200/00543/2021 Shri Sanjay Kumar Mukhiya who was OT Technician had been transferred to ESIC Bihta as OT Assistant which is also a lower post. In a similar manner one Shri Jitendra Kumar Lab Technician had been transferred as Lab Assistant to ESIC MC & H Bihta (Annexure A/9).
3. Respondents No. 2 to 5 in their counter reply have submitted that when ESIC planned for setting up of Medical College at Bihta some vacancies were created and vide circular dated 20.01.2021 it has been specifically mentioned that officials holding posts as per list attached Appendix A may apply for the said inter regional transfer and all the posts were base cadre posts having element of direct recruitment. Thus it was clear that options were not invited from the employees on posts to be filled in by method of promotion. The list of posts does not include the post of CSSD Technician being 100% promotional post which the applicant held at ESIC Indore. In office order No.56 of 2021 dated 22.04.2021 the applicant's designation mentioned as OT Assistant whereas he was holding the post of CSSD Technician. As the service particulars of the applicant received from ESIC Indore had depicted him as OT Assistant therefore erroneously his name was included in the list of officials approved for transfer. In the said office order Page 4 of 7 5 O.A.No. 200/00543/2021 it has been mentioned that "If any of the aforementioned official(s) who has/have been promoted from the post mentioned against her/his name(s) she/he shall not be relieved by the respective Regional Director(s)/Controlling Authority and the same may be brought to the notice of headquarters immediately via email for further course of action. The applicant was well aware that he was working on a promotional post of CSSD Technician. On noticing the error, corrective action was taken by cancelling his transfer order on 19.06.2021. The transfer order of Shri Sanjay Kumar Mukhiya and Shri Jitendra Kumar was issued on promotional post as per the Inter Regional Transfer policy dated 27.02.2013. It is further submitted by the respondents that the post of CSSD Technician which is 100% promotional post will only be filled by promotion from the incumbents in the feeder cadre i.e. CSSD Assistants working in the region only. Further It is submitted that Hon'ble Supreme Court in its judgment passed in SLP(c) No(s).36717/2017 (Namrata Verma vs. The State of Uttar Pradesh and others) dated 06.09.2021, has observed that it is not for the employee to insist to transfer him/her and/or not to transfer him/her at a particular place. It is for the employer to transfer an employee considering the requirement. Thus the Page 5 of 7 6 O.A.No. 200/00543/2021 claim of the applicant for transfer to Bihar region even on a lower post is not admissible.
4. In rejoinder applicant has reiterated the averments made in the Original Application.
5. Heard the learned counsel for the parties and perused the pleadings and documents annexed therewith.
6. On perusal of office order No.56 of 2021 dated 22.04.2021 the applicant's designation was mentioned as OT Assistant whereas he was holding the post of CSSD Technician. Since the service particulars of the applicant received from ESIC Indore had depicted him as OT Assistant, his name was included erroneously in the list of officials approved for transfer. In the said office order it has been mentioned that "If any of the aforementioned official(s) who has/have been promoted from the post mentioned against her/his name(s) she/he shall not be relieved by the respective Regional Director(s)/Controlling Authority and the same may be brought to the notice of headquarters immediately via email for further course of action. The applicant was working on a promotional post of CSSD Technician. On noticing the error, corrective action was taken by cancelling his transfer order on 19.06.2021. As far as transfer order of Shri Sanjay Kumar Page 6 of 7 7 O.A.No. 200/00543/2021 Mukhiya and Shri Jitendra Kumar is concerned, it was issued on promotional post as per the Inter Regional Transfer policy dated 27.02.2013. We are convinced by the submission of learned counsel for the respondents that the post of CSSD Technician which is 100% promotional post will only be filled by promotion from the incumbents in the feeder cadre i.e. CSSD Assistants working in the region only. Since the applicant applied in violation of guidelines being well aware that he was at higher post and he was not in the post that he could applicant. Hon'ble Supreme Court in the case of Namrata Verma (supra) has held that it is not for the employee to insist to transfer him/her and/or not to transfer him/her at a particular place. It is for the employer to transfer an employee considering the requirement. Thus, the claim of the applicant for transfer to Bihar region even on a lower post is not admissible. We find that this Original Application is devoid of any merits, hence the same is dismissed. No order as to costs.
(Kumar Rajesh Chandra) (Akhil Kumar Srivastava)
Administrative Member Judicial Member
kg/-
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