Central Administrative Tribunal - Madras
Dr A Anuradha vs Labour on 18 October, 2023
1 OA 463, 475, 491, 492, 493 & 578/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA NO.463, 475, 491, 492, 493 & 578/2023
Dated the 18th day of October Two Thousand Twenty Three
CORUM: HON'BLE MS. LATA BASWARAJ PATNE, JUDICIAL MEMBER
Dr.S.Shobhana,
Professor,
Department of Paediatrics,
ESIC Medical College & Hospital,
K.K.Nagar,
Chennai - 600 078. ...Applicant in OA 463/2023
Dr.Anandhi Lakshmanan,
Associate Professor,
ESIC PGIMSR & Medical College,
K.K.Nagar, Chennai - 600 078. ...Applicant in OA 475/2023
1. Dr.R.Anuradha,
D/o.D.Ramachandran,
Associate Professor
(Community Medicine),
ESIC Medical College & Hospital,
K.K.Nagar, Chennai - 600 078.
2.Dr.M.P.Saraswathy,
D/o.M.Palanisamy,
Associate Professor (Micro Biology),
ESIC Medical College & Hospital,
K.K.Nagar, Chennai - 600 078.
3.Dr.A.Sathish Selva Kumar,
S/o.S.Arumugam,
Associate Professor (Pathology),
ESIC Medical College & Hospital,
K.K.Nagar, Chennai - 600 078.
4.Dr.T.Rajathilagam,
W/o.T.J.Jayashankar,
Associate Professor (Pharmacology),
ESIC Medical College & Hospital,
K.K.Nagar, Chennai - 600 078.
5. Dr.Vijayakumar A.E.,
S/o.A.M.Ekambaram,
Associate Professor (Pharmacology),
ESIC Medical College & Hospital,
K.K.Nagar, Chennai - 600 078.
2 OA 463, 475, 491, 492, 493 & 578/2023
6. Dr.Suma Elangovan,
D/o.P.Elangovan
Professor (Ophthalmology),
ESIC Medical College & Hospital,
K.K.Nagar, Chennai - 600 078.
7. Dr.K.Monicka,
D/o.V.Kalaimani,
Associate Professor (Psychiatry)
ESIC Medical College & Hospital,
K.K.Nagar, Chennai - 600 078.
8.Dr.K.Radhika,
D/o.A.T.Kannan,
Professor (Anaesthesia)
ESIC Medical College & Hospital,
K.K.Nagar, Chennai - 600 078. ... Applicants in OA 491/2023
1. Dr.G.Sugapriya,
D/o.Govindarajeswaran,
Associate Professor (Physiology)
ESIC Medical College & Hospital,
K.K.Nagar, Chennai - 600 078.
2.Dr.Deivasigamani Kuberan
S/o.N.Deivasigamani,
Professor (Community Medicine)
ESIC Medical College & Hospital,
K.K.Nagar, Chennai - 600 078.
3.Dr.Ilango Ganesan,
S/o. Ganesan Balasubramanian,
Professor (Anaesthesia)
ESIC Medical College & Hospital,
K.K.Nagar, Chennai - 600 078.
4.Dr.Pankaj Surana,
S/o.Mahabir Prasad Surana,
Associate Professor (General Surgery),
ESIC Medical College & Hospital,
K.K.Nagar, Chennai - 600 078.
5.Dr.S.Vanithamani,
D/o.M.Sivapragasam,
Associate Professor (Obstetrics & Gynaecology)
ESIC Medical College & Hospital,
K.K.Nagar, Chennai - 600 078.
6.Dr.Maya Menon,
D/o.K.R.Menon,
Professor (Obstetrics & Gynaecology),
3 OA 463, 475, 491, 492, 493 & 578/2023
ESIC Medical College & Hospital,
K.K.Nagar, Chennai - 600 078.
7.Dr.N.Rajarajan,
S/o.N.Sakthivel,
Professor (Orthopaedics),
ESIC Medical College & Hospital,
K.K.Nagar, Chennai - 600 078.
8.Dr.S.Snekalatha,
W/o.Dr.G.Saravana Kumar,
Professor (Physiology),
ESIC Medical College & Hospital,
K.K.Nagar, Chennai - 600 078. ... Applicants in OA 492/2023
1.Dr.V.Madhubala,
D/o.T.Veerasamy,
Professor (Biochemistry)
ESIC Medical College & Hospital,
K.K.Nagar, Chennai - 600 078.
2.Dr.Sowmya Sampath,
D/o.R.S.K.Tatachari,
Director Professor (Paediatrics),
ESIC Medical College & Hospital,
K.K.Nagar, Chennai - 600 078. ... Applicants in OA 493/2023
Dr.Vijayakumar A.E.,
S/o.A.M.Ekambaram,
Associate Professor (Pharmacology),
ESIC Medical College & Hospital,
K.K.Nagar, Chennai -600 078. ... Applicant in OA 578/2023
By Advocate Mr.J.Srinivasa Mohan for M/s TVJ Associates
in OA 463/2023
Mr.Vijay Narayan Senior counsel
for N.S.Amogh Simha in OA 475/2023
Mr.P.Wilson Senior counsel
for M/s.S.Nedunchezhiyan in OA No.491/2023
Mr.G.Sankaran Senior counsel
for M/s.S.Nedunchezhiyan
in OA No.492/2023 & 493/2023 & 578/2023
Vs
1. Union of India,
By its Secretary,
Ministry of Labour and Employment,
Shram Shakti Bhawan,
Rafi Marg, New Delhi - 110 001
4 OA 463, 475, 491, 492, 493 & 578/2023
2. Employees State Insurance Corporation,
By its Director General,
Panchdeep Bhawan,
C.I.G Marg, New Delhi - 110002.
3. Employees State Insurance Corporation,
Medical Administration Branch,
By its Deputy Director,
Panchdeep Bhawan, CIG Marg,
New Delhi - 1110 002 ...Respondent No.1 to 3 in OA 463/2023
4. ESIC Medical College Hospital,
By its Dean,
KK Nagar,
Chennai - 600 078. ...4th respondent in OA 463/2023
5. ESIC Medical College Hospital,
By its Dean,
Sanathnagar, Hyderabad,
Telengana 500038 ...5th respondent in OA 463/2023
1. Employees State Insurance Corporation,
By its Director General,
Panchdeep Bhawan,
C.I.G Marg,New Delhi - 110002.
2.The Chairman,
Employees State Insurance Corporation,
Panchdeep Bhawan,
C.I.G Marg,New Delhi - 110002.
3.The Deputy Director (Medical Administration)
Employees State Insurance Corporation,
Panchdeep Bhawan,C.I.G Marg,
New Delhi - 110002.
4.Employees State Insurance Corporation, Regional Office
Panchdeep Bhawan, 143 Sterling Road,
Nungambakkam, Chennai 600 034.
5.Employees State Insurance Corporation Medical College & PGIMSR
By its Dean, Ashok Pillar Main Road, KK Nagar,
Chennai - 600 078. ... Respondents 1 to 5 in OA 475/2023
1. Union of India,
By its Secretary,
Ministry of Labour and Employment,
Shram Shakti Bhawan,
Rafi Marg, New Delhi - 110 001
5 OA 463, 475, 491, 492, 493 & 578/2023
2. Employees State Insurance Corporation,
By its Director General,
Panchdeep Bhawan,
C.I.G Marg, New Delhi - 110002.
3.The Deputy Director (Medical Administration)
Employees State Insurance Corporation,
Panchdeep Bhawan,C.I.G Marg,
New Delhi - 110002.
4. ESIC Medical College Hospital,
By its Dean,
KK Nagar,
Chennai - 600 078. ... Respondents 1 to 4 in OA 491, 492, 493/2023
1.Union of India,
By its Secretary,
Ministry of Labour and Employment,
Shram Shakti Bhawan,
Rafi Marg,New Delhi - 110 001.
2.The Director General,
Employees' State Insurance Corporation,
Panchdeep Bhawan,
Comrade Indrajeet Gupta (CIG) Marg,
New Delhi - 110 002.
3.The Medical Commissioner,
Employees State Insurance Corporation,
Panchdeep Bhawan,
Comrade Indrajeet Gupta (CIG) Marg,
New Delhi - 110 002.
4. The Deputy Director (Medical Administration),
Employees State Insurance Corporation,
Panchdeep Bhawan,
Comrade Indrajeet Gupta (CIG) Marg,
New Delhi - 110 002.
5.The Assistant Director (MA),
Employees State Insurance Corporation,
Panchdeep Bhawan,
Comrade Indrajeet Gupta (CIG) Marg,
New Delhi - 110 002.
6.The Dean,
ESIC Medical College Hospital,
K.K.Nagar,Chennai - 600 078. ... Respondents 1 to 6 in OA 578/2023
By Advocate Mr.ARL Sundareswaran Learned ASG for
Mr.C.V.Ramachandramurthy in OA 463,475/2023
Mr.K.Prabakar in OA 491, 492, 493 & 578/2023
6 OA 463, 475, 491, 492, 493 & 578/2023
ORAL ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)) The applicants have filed the present OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
"To call for the records of the 3rd Respondent dated 20.05.2023 in office order No.65 22013/15/2023-MED-VI, in so far it relates to the Applicants and set aside the same.
And to pass any other order(s) or direction(s) as deemed fit and proper in the circumstances of this case and thus render justice."
2. Since the issue involved in the above OAs are common, they are heard together and disposed of by this common order.
3. The brief facts of the case as stated by the applicants are as follows:
The Applicants in all the OAs were appointed as Associate Professor as per the selection carried out since from the year 2011, 2012, 2013, 2014 & 2016 and joined as teaching faculty in the College/Medical Institute of the respondents. Since from their date of appointment, the applicants are working with full of dedication till date. The contention of the applicants is that when the advertisement was issued for appointment to the post of Associate Professor that was on institutional basis within the State. However, for the first time in June 2022, the Transfer policy has been framed and along with other faculties, teaching faculty was also included and in December 2022 options were called for from all the employees for choice of their transfer and the applicants have submitted their choices. However without giving preference to the first choice of the applicants and not following with the polices/guidelines, the applicants were transferred on 20.05.2023. Though the applicants have submitted their grievances in detailed representations stating therein that either the applicant's dependents are suffering with life 7 OA 463, 475, 491, 492, 493 & 578/2023 threatening diseases or their school going children are in the middle of their academic session and they have also opted for Tamil as second language and some of their children are studying in 10th /12th standard and their entire school fees for the academic session has been paid, however, the respondents have not considered any of the grievances of the applicants and transferred them. Being aggrieved the applicants have filed the present OAs seeking the aforesaid relief.
4. After notice, the respondents have entered appearance through their counsel and filed their reply and opposed the relief raising the preliminary objection that since the applicants have not exhausted the remedy though they have submitted their grievances to the grievance committee without waiting for redressal of their grievance, they have approached this Tribunal, hence the OAs are premature at this stage. Moreover the employees have to exhaust all the available channels before resorting to litigation. The remedy which the applicants have chosen by directly approaching this Tribunal leads to the undue expense of time and resources of the respondents which has to be otherwise used in public interest. Hence the application of the applicant has to be dismissed in limine as it is premature.
4.1 The respondents further contended that Employees' State Insurance Corporation was established under ESL Act, 1948 with an objective of providing social security benefits through ESI Scheme Insured Persons (IPs) and their dependents, Under ESIC 2.0 Reforms and Vision ESI Scheme is being extended massively throughout the country. The EST Scheme has been implemented in 442 districts and partially implemented in 153 districts of our country. As on 31.03,2022, there are 3.10 crore insured persons with 12.3 crore beneficiaries are covered under ESI Scheme. Medical care to the beneficiaries is provided through a large infrastructure comprising 109 ESIS 8 OA 463, 475, 491, 492, 493 & 578/2023 and 51 ESIC Hospitals -with 20211 commissioned beds, 1502 Dispensaries, 89 Dispensary-Cum-Branch-Offices (DCBOs), 6 Diagnostic Centers, 4EUDS and 1003 IMP Clinic beside tie-up arrangement with other institutions. Further, ESIC also conducting Annual Preventive Health Check-up Programme and also implementing Atal Bimit Vyakti Kalyan Yojana (ABVKY) and Rajiv Gandhi Shramik Kalyan Yojana for providing relief in case of the Insured Persons facing unemployment. From the above, it could be observed hit, ESIC is providing comprehensive social security benefits to its Insured Persons and beneficiaries. To ensure the provision of such services in an efficient, effective and citizen friendly manner, the hierarchy of ESIC Institutions should be placed with personnel having necessary skills, professional expertise and sufficient experience. The transfer policy has been devised with an objective of placing the right person in the right place in a transparent manner. It is also imperative to mention that, All India Service liability is a core service condition attached with the appointment of Medical Officers in ESI Corporation. Hence, ESI Corporation is fully empowered to transfer any of its employees to anywhere in India according to the requirements of public interest. The foregoing will stand to prove before this Hon'ble Tribunal that OA of the applicant is frivolous, against the service conditions of the appointment of the applicant and not in consonance with the public interest. 4.2 The respondents further submitted that Para 6.1 of the transfer policy dated 20.06.2022 says "The committee will able to devise its own mechanism for recommending names for transfer/posting." Accordingly, the transfer committee for clinical postings of doctors has mentioned in its recommendations about the mechanism and criteria adopted by the committee The Transfer Committee had several meetings to examine the matter. The committee follows the principles of Transfer Policy dated 9 OA 463, 475, 491, 492, 493 & 578/2023 20.06.2022 for recommending the candidates for transfers. The brief of steps followed by Transfer Committee are as under:
1. Candidates are examined for completion of normal tenure (6 years), request transfer with completion of minimum tenure (3 years) and compassionate transfer request (requiring deviation from norms of transfer policy).
2. Doctors due for retirement on superannuation within a year are not considered for transfer in general (clause 7.7 of the policy).
3. The committee examined the weightage claimed by the applicants as per Annexure I of the transfer policy for clinical posting.
4. Based on above the doctors for transfer are shortlisted and considered for posting in the priority as mentioned in clause 3.2 of the policy.
Committee decided as far possible to post Non PG GDMO in Dispensaries and utilize PG qualified GDM0 in hospitals / colleges."
From the above it is clearly visible that the transfer committee is acted in an equitable, fair and reasonable manner. Among all the candidates considered for the purpose of clinical postings, the applicants are candidates who fulfil the criteria for posting to ESIC Hospital, Udyogmandal, Tirunelveli & Peenya respectively. It is pertinent to mention that the applicants are working in the present place of posting more than 18, 17 &11 years respectively. The applicants having accepted the All India Service liability and the post for which they are transferred being a crucial post may not have to harp on personal reasons and misinterpret the transfer policy for their own vested interest.
4.3 The respondents further contended that the applicants are relying upon the transfer policy in bits and pieces for their own convenience and neither looking at the transfer policy in its entirety nor at the terms which are unfavourable to them. While issuing the said transfer order to the applicant as well as to other employees all parameters has been followed by the committee and considering the parametric and option given by the concerned employee comparing with the other employees the said transfer has been effected. Moreover the transfer policy no way provides exemption for the applicants on the ground of children appearing for 10/12 th Board Examination and the transfer committee has very well considered the weightage claimed by the applicants as per the Annexure-1 of the transfer policy for clinical posting. The respondents further contended that as far as concerned to the 10 OA 463, 475, 491, 492, 493 & 578/2023 parity with the other employees who have been considered and retained at same station even after transfer on the ground of their children's education pursuing studies in 10/12th standard, in that matter transfer was issued in mid-academic session on account of administrative exigencies. Hence the employees have been retained in the place and were allowed to complete their children's academic session but in the matter of applicants, the academic session has just been started when transfer order has been issued. If the applicants are retained even at the beginning of their children's academic session, the respondents are not in a position to fulfil their requirement of the administrative exigencies. Moreover, the applicants' post is a transferable post and transfer is an incident of service. As per the requirement of the employer and in administrative exigencies, the employee is bound for transfer. If at all the applicants want to be there with their son/daughter during such times, the Government has made such provision and granted Child Care Leave up to 18 years of the child and the applicants can very well avail the said leave.
4.4 The respondents further contended that once the applicants have accepted the appointment order unconditionally wherein it has been specifically mentioned that the said posts are transferable and when options were called for, all the applicants have submitted their options and the respondents after giving preference to their options and also looking to the administrative exigency and availability of posts, posted the applicants as per the said transfer order. Further transfer is an incident of service and it is the employer's prerogative and the applicants cannot claim the place of posting as a matter or right and cannot suggest that they have to be posted at particular place only as per their wish/choice. Hence the respondents have acted in accordance with the policy considering the applicants' preference and 11 OA 463, 475, 491, 492, 493 & 578/2023 posted them to places wherein all the medical/educational facilities are available. Moreover, all the applicants are highly qualified doctors and they cannot give such type of lame excuse and when they have submitted their grievances before the grievance redressal committee without waiting for the reply they have approached this Tribunal by filing the present OAs and since the OAs are premature and hence they prayed for dismissal of the OAs. 4.4 The respondents further contended that no where in the pleadings or ground in the OAs the applicants have alleged any malice in law or malafide against the respondents and as per the observations and guidelines of the Hon.Supreme court of India in a catena of cases in the matter of transfer, it cannot be routinely interfered without such allegations of bias or malafide. Hence they prayed for dismissal of the OA.
5. Heard learned senior counsel Mr.Vijay Narayan for N.S.Amogh Simha for the applicant in OA 475/2023, Mr.P.Wilson for M/s.S.Nedunchezhiyan for the applicants in OA No.491/2023 & learned senior counsel Mr.G.Sankaran for M/s.S.Nedunchezhiyan for the applicants in OA No.492/2023 & 493/2023 & 578/2023 and Mr.J.Srinivasa Mohan for the applicants in OA 463/2023 and Learned ASG Mr.ARL Sundareswaran for Mr.C.V.Ramachandramurthy and Mr.K.Prabakar for the respondents.
6. Learned senior counsel Mr.V.Vijay Narayan has strongly argued on the point that when the advertisement was issued for recruitment followed with the recruitment regulation 2008, the applicant has applied since it is institutional basis post and shall be made at State level hence after selection the applicant in OA 475/2023 came to be appointed at the present place at Chennai and from the date of appointment the applicant is working in Chennai. For the first time, transfer policy has been framed in June 2022 wherein with all other faculties, teaching faculty was also included. However, 12 OA 463, 475, 491, 492, 493 & 578/2023 the respondents have not strictly followed the transfer policy wherein schedule has been prescribed.
Date by which Exercise
action to be
taken
December 1st Preparatory work of Annual General Transfer. List of
doctors who are due for mandatory transfer to be made
available in the online portal
December 15 to Calling of option(s) by 31 st December through online portal 31 in respect of doctors (a) having completed or completing minimum/maximum tenure as prescribed at a station as on 31st March of transfer year; and (b) seeking 'Compassionate Ground Transfers under clause 4.2(iii)' of transfer policy.
February 10th Transfer committee to recommend Annual General Transfer February 25 th Orders for Annual General Transfer to be issued March 2 to 5 Online grievance representation by those aggrieved by the Annual General Transfer order(s) March 10th Comments of Transfer Grievance Redressal Committee to be submitted before competent authority prescribed for the purpose March 15th Disposal of online grievances.
Neither the schedule nor the priority matrix to consider the options submitted for the transfer has been followed by the respondents. Once the option has been given by the employee that has to be considered as per their preference and transfer committee have to record reason for its recommendation also the same available in the online portal. However, the respondents have not followed the guidelines of the said transfer policy dated 20.06.2022 and recommendation of the transfer committee is also not so specific in accordance with the said guidelines. Moreover, the respondents cannot act against the recruitment rules when the advertisement was issued as per the recruitment rules and was on institutional basis within the State level. Subsequently by way of this transfer policy same cannot be modified when the applicants have accepted the offer of appointment and joined the 13 OA 463, 475, 491, 492, 493 & 578/2023 post under the bonafide impression that the advertisement was particularly for the particular institution and there was no ambiguity and on the basis of said transfer policy which was issued subsequently it cannot be made applicable retrospectively in the matter of applicants. Moreover the appointment order wherein the condition has been imposed that the post of the applicants are transferable the same itself is against law and the applicants are having right to challenge such a condition which is contradictory to the recruitment rules and advertisement issued for the recruitment.
6.1 Learned counsel further submitted that the language criteria also have to be looked into. Though the applicants are rendering their services as teaching faculties in the medical colleges, they have to treat the patients also and language will be a barrier while interacting with the patients in ESIC hospital since all the patients are from the lower labour class category employees. Hence the transfer is against public importance. 6.2 Learned counsel also pointed out that the applicant's husband was suffering with heart disease and was operated in the year 2016 and he is under the treatment of a particular doctor and though she has submitted her five options, however the respondents have not recorded the reason for declining her first choice. Learned counsel for the applicant has relied upon the judgment of the Hon.High court of Madhya Pradesh in WP No.21175/2019 dated 03.12.2019. The relevant paras of the said judgment are extracted hereunder:
12. Further, in the case of Dr. Nagorao Shivaji Chavan (supra), the Supreme Court has observed as under :-
"5. ...............It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The Government is the best judge to decide how to distribute and utilise the services of its employees. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public 14 OA 463, 475, 491, 492, 493 & 578/2023 interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such; transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, than is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair. The observation that transfer is also an implied condition of service is just an observation in passing. It certainly cannot be relied upon in support of the contention that an order of transfer ipso facto varies to the disadvantage of a Government service, any of his conditions of service making the impugned order appealable under Rule 19(1)(a) of the Rules.
6. One cannot but deprecate that frequent, unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a Government servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. It therefore follows that the policy of transfer should be reasonable and fair and should apply to everybody equally. But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the Government is not conductive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that the position of Class III and Class IV employees stand on a different footing. We trust that the Government will keep these considerations in view while making an order of transfer."
13. The basic object for confining the limited jurisdiction of High Court for not interfering in the matter of transfer is that the employer is the best judge to know as to how and where the services of its employee can be utilized and under the administrative exigency the employee can be transferred by the employer. However, when action of the employer is questioned in the Court alleging arbitrariness and mala fide, the Court can at least examine the fact whether any administrative exigency actually exists and transfer of the employee is being done frequently due to such administrative exigency. The High Court in one of the cases has considered this aspect and observed that the word 'Administrative Exigency' cannot be used by the employer for its convenience but it is shown to be existed. The Court has also considered that if an employee is transferred within a normal tenure and further he has been frequently transferred then the State has to explain the administrative exigency otherwise it can be presumed that the transfer is being made without any rhyme or reason. The observation made by the High Court is as follows :-
"14. That, it is apparent from the impugned order dated 05.07.2019 that the petitioner has been transferred within less than 2 years of his posting at Indore against the guidelines of the transfer policy which amounts to frequent transfer as it is without any rhyme or reason and in spite of direction by this Hon'ble Court to seek instructions, the State Govt. has not been able to establish the alleged administrative exigency. The practice of abrupt and frequent transfer by abuse of power by State Govt. has been depreciated by the Hon'ble Supreme Court in the matter of B. Varadha Rao V. State of Karnataka reported in (1986) 4 SCC 131 wherein the Hon'ble Court has held that an employer can transfer the employees to meet bonafide exigency of administration but if the transfers are done frequently without any cogent reason of administrative exigency then such transfers are liable to be struck down.
15. Again in the matter of Somesh Tiwari V. Union of India reported in (2009) 2 SCC 592 the Hon'ble Supreme Court has held that though transfer is an incident of 15 OA 463, 475, 491, 492, 493 & 578/2023 service and cannot be interfered with often but if the order of transfer is based on irrelevant ground or without any rhyme and reason it becomes malafide and constitutes 'malice in law'. Relevant extract of the aforesaid judgment is reproduced herein for ready reference. 16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds
--one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal.
16. Following the aforesaid judgment of Somesh Tiwari (Supra) this Hon'ble court in the matter of Swati Singh V.M.P.K.V.V. Co. Ltd. reported in 2014 (1) M.P.L.J. 308 has held that malice in law means something which is done without lawful excuse. In the present case also the impugned transfer order is made on the ground of alleged administrative exigency, but the respondent State has miserably failed to establish alleged administrative exigency which constitutes malice in law and makes the impugned order Annexure P/4 bad in law. Relevant extract of the judgment of Swati Singh (Supra) is reproduced herein for ready reference:-
22. In the opinion of this court, there is a difference between malice in fact and malice in law. Malice in fact means express or actual malice, ill-will towards a particular person; an actual intention to injure. It implies desire or intent to injure while malice in law or implied malice means wrongful act done intentionally without just cause or excuse (See: Black's Law Dictionary-Sixth Deluxe Edn.). Malice in fact or actual malice relates to the actual state or condition of mind of the person who did the act. Malice in fact is where the malice is not established by legal presumption or proof of certain facts, but is to be found from the evidence in the case [See (2003) 8 SCC 567 (Chairman and MD, BPL Ltd. v. S.P. Gururaja)]. Malice in its legal sense means malice such as may be assumed for a wrongful act done intentionally, but without just cause or excuse or one of reasonable or probable cause. The term "malice in fact" would come within the purview of the said definition. [see AIR 2006 SC 2912 (R.S. Garg v. State of U.P.) and AIR 1991 SC 1260 (State of Bihar v. P.P. Sharma).
23. This is settled in law that exercise of power for an extraneous or ulterior purpose amount to "malice in law". These are cases where, though the authority has no corrupt motive or personal malice against the party affected, yet the law will impute a fraud on the statute, if he has exercised the power for a purpose other than that for which the enabling provision conferred the power or discretion. Legal malice or malice in law means something done without lawful excuse. In other words, it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill-feeling and spite. It is a deliberate act in disregard of the rights of the other (See: State of A.P. v. Goverdhanlal Pitti (2003) 4 SCC 739). Where government action is unreasonable or lacking in quality of public interest, though different from that of mala fides, it may in a given case furnish evidence of mala fides (See: Kasturi Lal v. State of J & K (1980) 4 SCC 211). Even if an order is found to be not vitiated by malice in fact, but still can be held to be invalid, if the same is passed for unauthorized purpose as it would amount to malafide in law 16 OA 463, 475, 491, 492, 493 & 578/2023 [see: (2005) 6 SCC 776 (Punjab State Electricity Board v. Zora Singh)].
Interference of mala fides can be drawn by reading in between the lines and taking into consideration the attendant circumstances [see (1994) 6 SCC 98 (N.K. Singh v. Union of India)]. In (2009) 2 SCC 592 (Somesh Tiwari v. Union of India) it is opined that transfer order will be bad in law, if it is issued not based on any factors germane to the passing of an order of transfer and based on irrelevant grounds.
24. At the cost of repetition, in my opinion the transfer order can be passed only in administrative exigency and in public interest. On the basis of aforesaid judgments, it is clear that transfer order can be passed only on the said relevant consideration and purpose. The appreciation letter Annexure P/17 leaves no room for any doubt that the petitioner's continuance at Gwalior was neither against administrative exigency nor public interest. The word "administrative Exigency" and "public interest" are not magic words nor these are 'mantras' which can serve the purpose in any circumstances. These words have definite meaning and in a given case the employer must show the reason for transferring the employee. Reasons must be discernable. Putting it differently, the said words are not like a carpet under which anything can be swept. On the basis of pleadings, material and antecedents facts of this case, in the opinion of this Court, transfer order is passed for extraneous and irrelevant considerations other than the reasons for which valid transfer order can be passed. Such exercise of power amounts to colourable exercise of powers. In (1991) 1 SCC 212 (Kumari Shrilekha Vidyarthi v. State of U.P.) the Apex Court opined that it is in consonance with the Court's commitment to openness which implies scrutiny of every State action to provide an effective check against the arbitrariness and abuse of power. The Court would much rather be wrong in saying so rather than be wrong in not saying so. Nonarbitrariness, being a necessary concomitant of the rule of law, it is imperative that all actions of every public functionary, in whatever sphere, must be guided by reason for not humour, whim, caprice or personal predilections of the persons entrusted with the task on behalf of the State and exercise of all power must be for public good instead of being an abuse of the power.
17. That, another submission made by the respondents is that though the transfer policy contemplates that ordinarily transfer of employees should not be done before expiry of 3 years but since the transfer policy not having statutory flavor it is not binding. This contention of the Respondents lacks weightage as it is settled position of law that a field which is not occupied by statutory rules can be governed by executive instructions. Meaning thereby the State Government can fill up gaps and cover areas which otherwise have not been covered by statutory provisions. The aforesaid principle has been laid down in the matter of Union of India V. Central Electrical and Mechanical Engineering Services (CE & MES) Group A (Direct Recruits) Assn. and Others reported in (2008) 1 SCC 354 in Para 10 as under:- 10. It is now a well-settled principle of law that an executive order must be passed in conformity with the rules. Power of the State Government to issue executive instructions is confined to filling up of the gaps or covering the area which otherwise has not been covered by the existing rules. See Sant Ram Sharma v. State of Rajasthan [AIR 1967 SC 1910] and DDAv. Joginder S. Monga [(2004) 2 SCC 297]. Such office orders must be subservient to the statutory rules.
18. Similar question came up for consideration before the Hon'ble Apex Court in the matter of State of M.P. V. S.K. Dubey reported in (2012) 4 SCC 578, wherein the Hon'ble Supreme Court has specifically held that executive powers of state extends to matters with respect to which the legislature of the State has power to make 17 OA 463, 475, 491, 492, 493 & 578/2023 laws. Article 162 of the Constitution gives State Executive coextensive powers with that of the State Legislature and therefore, the transfer policy framed by the State Govt. cannot simply be washed away treating it to be not binding on the State Govt. Relevant extract of the aforesaid judgment is reproduced herein for ready reference:-
30. The moot question that falls for determination in this appeal is: whether in the absence of any express rule in the State Rules, was it open to the State Government of Madhya Pradesh to have provided by way of an executive Order dated 5-4-2002 that the service rendered by the respondent as President of the State Commission would be counted as pensionable service? The incidental question is: whether such order is inconsistent with Section 16(2) or the State Rules?
31. Subject to the provisions of the Constitution, the executive power of a State extends to the matters with respect to which the legislature of the State has power to make laws. This is what is provided in Article 162 of the Constitution. In other words, the executive power of the State executive is coextensive with that of the State Legislature.
32. In Sant Ram Sharma [AIR 1967 SC 1910] this Court negated the arguments advanced on behalf of the appellant therein that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the rules already framed. The Court stated: (AIR p. 1914, para 7) "7. ... It is true that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed." The above legal position has been followed and reiterated by this Court time and again.
33. The Constitution Bench of this Court in Lalit Mohan Deb [(1973) 3 SCC 862 : 1973 SCC (L&S) 272] said: (SCC p. 867, para 9) "9. It is true that there are no statutory rules regulating the selection of assistants to the selection grade. But the absence of such rules is no bar to the administration giving instructions regarding promotion to the higher grade as long as such instructions are not inconsistent with any rule on the subject." In Union of India v. Central Electrical & Mechanical Engg. Service (CE&MES) Group 'A' (Direct Recruits) Assn., CPWD [(2008) 1 SCC 354 : (2008) 1 SCC (L&S) 173] , this Court held that the executive instructions could fill in gaps not covered by the rules but such instructions cannot be in derogation of the statutory rules.
19. The aforesaid proposition of law again came up for consideration before the Hon'ble Supreme Court recently and in the matter of State of Karnataka V. Krishna Kumar and Others reported in AIR 2019 SC 3133 the Hon'ble Supreme Court has held that in the absence of statutory provisions the executive functions would have force of law. Relevant extract of the aforesaid judgement is reproduced herein for ready reference:-
9. Even assuming that the provisions of the Act of 2007 and rules thereunder are applicable, since there is no provision to the contrary therein, the provision in question providing for mutual transfer could have been carved out by issuing executive instructions contained in Memo dated 7.4.2010. No such provision in the Act and rules has been pointed out with respect to mutual transfers. Particularly when the provisions of 'mutual transfer' which is made in Office Memorandum of 2010, depends on the
18 OA 463, 475, 491, 492, 493 & 578/2023 volition of an employee, there is no compulsion, it cannot be said to be arbitrary. It is ordered only when two incumbents opt for mutual transfer. Thus, Office Memorandum dated 07.04.2010 could not be said to be in violation of the provisions of the Act of 2007 and rules. The Tribunal and the High Court both have misdirected themselves in this regard.
10. In our considered opinion, the provisions of mutual transfer does not militate against the provisions of the Act and rules framed thereunder and particularly, when it was with respect to SSA Scheme, it was open to making certain provisions by way of Office Memorandum dated 07.04.2010. Mere reference to the Act and the rules framed in the same does not mean that the provisions have been adopted for all the purposes. In the same Memo the provisions have been carved out for mutual transfer. In the absence of statutory provision, the executive instructions would have force of law, more so when the SSA is an independent scheme. The SSA Scheme is funded by the Central Government and considering its exigency, independent provisions could have been carved out which is not to be found in the Act of 2007 and the rules framed thereunder."
14. In view of the above, it is clear from the facts of the case in hand that the petitioner has been frequently transferred without assigning any reason as to what administrative exigency existed. The respondents, in their reply, have also not explained that frequent transfer of the petitioner and not allowing him to be continued at one station for a normal tenure is because of administrative exigency. In absence of any such explanation, that too, when the orders have been assailed by the petitioner alleging arbitrariness and mala fide on the part of the respondent authorities, the duty lies upon the employer to explain the administrative exigency under which the petitioner is being frequently transferred. As such, in absence of such an explanation, the Court should have no hesitation to form an opinion that the petitioner is being arbitrarily transferred frequently and such an action of the employer has to be deprecated."
7. Learned senior counsel Mr.P.Wilson argued that that while issuing the said transfer order dated 20.05.2023 the respondents have not followed with the policy strictly. These are the posts that pertain to institutional basis and when the advertisement has been issued for the appointment of the said posts, the applicants have applied particularly for the said posts that have been notified viz Chennai, ESI, Medical College and Hospital, wherein it has been specifically mentioned that "a candidate should submit only one application for one post. In case candidates want to apply for more than one post then he should apply separately for each post. Similarly if a candidate want to apply for more than one ESIC Medical Education Institution he should apply for each institution separately."
19 OA 463, 475, 491, 492, 493 & 578/2023 7.1 The learned senior counsel has contended that when other clauses has been specifically mentioned in the notification the person who is interested against the particular ESIC educational institution he has to apply if he is interested for more than two institutions so two applications are required separately. After their appointments the applicants have been posted in the present place and continuously working with an understanding that they will not be transferred out of the said institution. However by way of impugned transfer order they have been transferred not only out of the said institution but they have been transferred out of State also and thereby they are facing the hardships since the applicants are having their personal liabilities such as the family members suffering with the health issues as well as the school going children and because of this transfer, their education will be disturbed. Moreover some of the applicants are having the responsibility of dependants who are suffering with the diseases like Cancer as well as life threatening diseases.
7.2 The learned senior counsel further argued that against the said en masse transfer all over India the litigation has taken place towards non application of mind of the respondent authority and the said transfers are in violation of Rules and circulars issued by the respondents and therefore the other coordinate benches have entertained the OA by way of interim orders have protected the interest of the counter part of the employees who have been transferred from one place to another place.
7.3 Learned senior counsel Mr.P.Wilson has also placed his arguments in similar line as placed by the senior counsel Mr.V.Vijay Narayan in respect of the transfer of the applicant the respondents have not followed the transfer policy in line. Moreover, once the notification has been issued for the 20 OA 463, 475, 491, 492, 493 & 578/2023 recruitment/appointment it was purely on institutional basis. Neither in the recruitment rules nor in the notification it has been specified that the said notified posts are transferable since the appointment has to be given on institutional basis within State level. However, subsequently in the appointment order the respondents have imposed a condition that the selected candidates will be eligible to be posted anywhere in India in contravention with the recruitment rules as well as the notification. 7.4 Learned senior counsel for the applicant further relied upon the notification of the said recruitment wherein such condition has been imposed, however subsequently by corrigendum this has been modified to the effect that teaching faculty will be appointed on institutional basis. It is further argued that when recruitment notification has specifically specified the condition that candidates should submit only one application for one post and in case candidates want to apply for more than one post then he should submit separate application for each post. Similarly if a candidate wants to apply for more than one ESIC Medical Education Institution he should apply for each institution separately. In respect of Dean and teaching faculty, the appointment will be institutional basis only. He also placed his reliance upon the organogram issued on 29.07.2011 that approved the organisational structure for medical education institutions in the organisation of the respondents.
MANAGEMENT COMMITTEE
Dean/MS/SMC/RD/AC or Director/External Member
Dean
Registrar Administrative Officer
Medical Superintendent (Academic)
21 OA 463, 475, 491, 492, 493 & 578/2023
Below the organogram at point no.4, it is mentioned that Dean & Teaching Faculty will be appointed on Institutional basis.
7.5 Learned senior counsel Mr.P.Wilson further submits that the respondents ought not have applied the transfer policy retrospectively in the matter of the applicants. Moreover, when they have framed the said policy in the year 2022 being a model employer they have to follow the guidelines of the transfer policy which were not followed when instructions have been given to the applicants/employees to submit their options and accordingly the applicants have submitted their five option however the transfer recommending committee has not applied their mind though the applicants came to be transferred amongst one of the options, so far the applicants have not been given posting as per their first preference in the said option list and the respondents have not given any reason for denying the first option to the applicants. Though the applicants have submitted their detailed representations before the grievance redressal committee, so far decision has not been taken. Learned senior counsel further argued that the act of the respondents is totally against the recruitment rules, notification and even against the transfer policy. For the first time when the applicant came to be transferred because of the said transfer policy, the cause of action arose to him to raise the objection on the said appointment thought it was issued way back in the year 2011, 2014 or according to their appointments. To support his contention, learned counsel for the applicant has relied upon the judgment of the Hon.Supreme court in 2021 (10) SCC 116 - Somesh Thapliyal and anr. vs. Vice Chancellor HNB Garhwal University and contended that as observed by the Hon.Supreme court in its judgment, that employer cannot go beyond the advertisement notified for the regular selection if any condition subsequently incorporated in the offer of appointment at that time 22 OA 463, 475, 491, 492, 493 & 578/2023 the candidate who have gone through the rigours of regular selection left with no choice but to accept on dotted lines being in need of employment because of such condition subsequently the employee/candidate got affected he has every right to challenge such condition as and when cause of action arose to him therefore to challenge the appointment order today when the respondents have issued transfer order it cannot be said to be barred by limitation. The issue is always open if such conditions are not clearly mentioned either in the recruitment rules or in the notification and so the same can be challenged as and when the affected party feels aggrieved. So the applicants are having the right to challenge the said condition. Learned counsel further relies upon the DOPT OM dated 31.12.2010 wherein specific instructions have been issued to all the Ministry concerned that comes under the control of the DOPT while framing the recruitment rules and certain norms have been fixed that the recruitment rules should be clear on the following aspects:
"2.3 In respect of framing of Recruitment Rules for posts which are not covered by any of the Organized Services, the format of a Notification accompanied by the 13 column Schedule as given in Annexure I* shall be used. As for Organized Services, comprehensive Service Rules shall be framed covering, inter alia, the following aspects:-
1. Short Title and Commencement
2. Definitions
3. Constitution
4. Grades, Authorized Strength and its review
5. Members of the Service
6. Initial constitution of the service.
7. Future maintenance of the service
8. Appointments by deputation
9. Seniority
10. Probation
11. Appointment to the service
12. Liability for service in any part of India and other conditions of service.
23 OA 463, 475, 491, 492, 493 & 578/2023
13. Disqualifications
14. Power to relax
15. Savings
16. Interpretation
17. Repeal"
7.6 It is further contended that though the respondents have amended the recruitment rules on 03.07.2015, so far rule is silent about the liability for service in any part of India and other conditions of service. Learned senior counsel further submitted that the respondents have decided to transfer the applicants and issued en masse transfer orders without even considering the genuine grievances of the applicants though it has been specified at the time of submission of the option form and further after the transfer order dated 20.05.2023 submitted before the grievance committee, hence the transfer issued by the respondent is not only in contravention of the transfer policy it is against the recruitment rules and advertisement/notification for the recruitment and estoppel will apply against the respondents.
24 OA 463, 475, 491, 492, 493 & 578/2023
8. Mr.G.Sankaran, learned senior counsel has also placed his arguments in similar line. He also relied upon on the project assigned to the applicants.
Moreover he submitted that none of the grievances raised by the applicants have been redressed by the respondents. The respondents cannot act against the recruitment rules, advertisement and transfer policy.
8.1 Learned senior counsel further submits that in view of the advertisement, one the applicants has applied for two posts of same designation for two institutions separately and though she got selected, however she opted only for Chennai. Therefore, It is clear from the same that the post which the applicants came to be appointed are not transferable and it is institutional basis within the State level only. The clause on All India transfer liability incorporated in the order of appointment is non-est in the eyes of law and in the absence of any provision in the recruitment rules or service rules and if the clause is neither supported by the statutory provision nor by the terms of appointment it remains to be otiose and hence cannot be legally enforced. Moreover the respondents never maintained the All India Level seniority and the applicants were promoted on time bound not on the vacancy basis. Hence question of inter-se seniority did not arise. Once the applicants have been offered appointment to the post of teaching faculty in terms of condition in the advertisement/ notification for recruitment and being successfully selected and order of appointment is the necessary concomitant and the same cannot be termed as offer of appointment as a different cause of action. Therefore the condition for All India transfer liability incorporated in the appointment order is clear misdemeanour and same cannot be enforced against the teaching faculty.
25 OA 463, 475, 491, 492, 493 & 578/2023 8.2 Learned counsel further argued that the teaching faculty of the ESIC Medical institution have a similar job profile like faculty in autonomous higher educational institutions like IITs, IIMs, & AIIMs which are also under the control of the Central Government and those jobs are not transferable.
Though the faculty of higher educational and research institutions under the Central Government are also under public service, the nature of job does not warrant regular transfers for such faculties. Hence the applicants' post does not warrant transfer as it does not fit into administrative or sensitive post.
Learned counsel refers to the advertisement issued by the respondents in the year 2022 for recruitment for teaching faculty on All India basis wherein the condition in respect of All India transfer liability was explicitly mentioned.
However, neither the advertisement wherein the applicants participated nor in the recruitment rules against the said advertisement issued in the year 2011-2014, 2015 & 2016, such liability was there. Also in the recruitment notification of 2022, the vacancy position of each institution was not displayed and the candidates were asked to submit a single application to the posts in ESIC medical institutions all over India and as per the transfer policy of teaching faculty after completion of six years in an institution they will be transferred mandatorily, hence the said transfer policy will be applicable prospectively not retrospectively.
8.3 Learned counsel for the applicant further relies upon the clause 13.3 of National Education Policy 2020 for Higher Educational Institutions which provides that faculty should not be transferred. "13.3 Faculty will be appointed to individual institutions and generally not be transferable across institutions so that they may feel truly invested in, connected to, and committed to their institution and community." Notwithstanding, the applicants' transfer order has been issued in haste without application of 26 OA 463, 475, 491, 492, 493 & 578/2023 mind. The priority matrix as per the policy in terms of children in class 10 th or 12th standard, life threatening diseases of spouse, dependent parents, such grounds has totally been ignored. Only 5 zones have medical colleges and some zones have only one medical college. The applicants' initial choices were ignored, when vacancy existed and were transferred to places of last choice or no choice. The time line as per the policy was not adhered to leading to shifting of family in mid academic year. The transfer order is issued only to satisfy the ill-conceived transfer policy in so much as the teaching faculty is concerned. Even as per clause 3.1 of impugned transfer policy, it is directed that the Director General ESIC will be empowered to include or exclude any cadre of medical officers for specific reasons.
Whereas, when the teaching faculty is sought to be included in the transfer policy apart from the fact the same is in violation of recruitment rules and condition of appointment, no specific reason has been assigned by the respondent as directed. The issue of language will endanger the life of the Insured persons as they could not be comprehended precisely. Further, it will slow down the progression of patient care or education established in their institutions. Most of the students are selected through State Quota and such students and the patients prefer to approach doctor/teaching faculty who knows their language. The role of the teaching faculty in counselling or awareness creation among the insured patients will be hampered. The teaching faculties have multiple responsibilities which include patient care, patient communication, student education, PG thesis guidance, Medical research work and working for NAAC, NIRF, etc. When the recruitment is being done at the institutional or state level, there is no question of liability of all India service.
27 OA 463, 475, 491, 492, 493 & 578/2023 8.4 The ruling of the Hon.Supreme court in the case of Union of India & Anr Vs. Ashok Kumar Agarwal reported in 2013 (16) SCC 147 clearly mentions that executive instructions should not be contradictory to statutory rules. "It is a settled proposition of law that an authority cannot issue orders/office memorandum/executive instructions in contravention of the statutory rules.
However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions." The condition in the appointment order which mentions all India service liability is inappropriate and against statutory rules it cannot be enforced on the employees. The Applicants on being appointed 0n the post to which they were selected were not prejudiced based on the transfer liability clause included in the order of appointment in contravention of rules of recruitment and the terms of selection. The vulnerable position of the employee has been previously acknowledged by the Hon. Supreme court and the fact that the applicants have accepted the terms and conditions of the appointment does not prevent them from questioning a condition of service that is unlawful was ruled by the Hon'ble Apex Court in the case of Somesh Thapliyal vs Vice Chancellor H.N.B. Garhwal dated 3 September, 2021:
"The submissions of the learned counsel for the respondents that the appellants have accepted the terms and conditions contained in the letter of appointment deserves rejection for the reason that it is not open for a person appointed in public employment to ordinary choose the terms and conditions of which he is required to serve. It goes without saying that employer is always in a dominating position and it is open to the employer to dictate the terms of employment. The employee who is at the receiving end can hardly complain of arbitrariness in the terms and conditions of employment. This Court can take judicial notice of the fact that if an employee takes initiation in questioning the terms and conditions of employment, that would cost his/her job itself.
The bargaining power is vested with the employer itself and the 28 OA 463, 475, 491, 492, 493 & 578/2023 employee is left with no option but to accept the conditions dictated by the authority. If that being the reason, it is open for the employee to challenge the conditions if it is not being in conformity with the statutory requirement under the law and he is not estopped from questioning at a stage where he finds himself aggrieved. "
8.5 The applicants have been serving on the post and institution for which they were selected and were promoted in the same institution on time bound basis as per the Recruitment Regulations 2008. The Reference to clarification of the term All India transfer liability by the Ministry of Finance in the case of Hindustan Paper Corporation Ltd. Vs Presiding Officer, Industrial March, 2003 in Guwahati High Court, as follows:
'The concept of All India Transfer Liability stood clarified in the office memorandum No. 2001/3/83-E/IV, dated 20.4,1987, issued by the Ministry of Finance Government of India. According to the office memorandum, dated 20.4.1987, aforementioned, the purpose of sanctioning Special (Duty) Allowance, which is NE Allowance in the case of the Corporation, the All India Transfer Liability of the members of any service/cadre encumbrance of any post/group of posts has to be determined by applying test of recruitment zones, promotion zones, etc., that is, whether recruitment of the service/cadre/post has been made on All India basis or whether promotion is also done on the basis of all India zone of promotion based on common seniority for the service/cadre/post as a whole. Mere clause in the appointment letter as done in the case of almost all posts in the Central Secretariat, etc., to the effect that the person concerned is liable to transfer or to be transferred anywhere in India do not make him eligible for grant of special duty allowance'.
The sixth Central Pay Commission report in the section on special duty allowance payable to employees who have All India transfer liability defines "4.2.23 "All India transfer liability exists when a person is recruited through an All India examination and belongs to a cadre which has inter-se-seniority on All India basis and whose members are liable to be posted anywhere in India". Since the applicants were not recruited on All India basis through All India examination and promotions were not done on All India basis, the 29 OA 463, 475, 491, 492, 493 & 578/2023 question of All India transfer liability does not arise. Mere clause in appointment order should not be used to enforce all India transfer liability on the applicants. While issuing said transfers, the respondents have not even considered their genuine grievances in respect of their school going children, aged parents, spouse disease and the policy in respect of husband and wife has to be posted at same station particularly when some of the applicant's children who are admitted in 10 th/12th standard for academic session 2023-
2024 and all their fees, tuition fees, coaching fees, etc were already paid and if in the middle of the academic year, i.e., in the month of May, if such transfer is made, then their education as well as future will be hampered. In support of his contentions, he has relied upon the following judgments:
(i) 1995(5) SCC 628-M.R.Gupta Vs. UOI
(ii) 2011 (6) SCC 739 - Thirumalai Chemicals Ltd Vs. UOI & Ors.
(iii) 2013 (12) SCC 600 - J & K Institute of Management, Public Administration & Rural Development Vs. Renu Bala & Others
(iv) 2021 (10) SCC 116 - Somesh Thapliyal and anr Vs. Vice Chancellor H.N.B.Garhwal University
(v) 2022 (11) SCC 392 -ESIC Vs. UOI & Ors.
9. Learned counsel Mr.T.Srinivasa Mohan appeared for the applicants in OA 463/2023 and submitted that for the first time, the respondents have issued transfer policy dated 20.06.2022 with the approval of Hon.Minister for Labour & Employment/Chairman ESIC. As per clause 4.4 of the transfer policy all cases of transfer will be dealt with and decided keeping in view the weightage point scored under priority matrix. Though the applicant has submitted her grievance of life threatening disease of her spouse since the husband of the applicant underwent CABG procedure for triple vessel block through open 30 OA 463, 475, 491, 492, 493 & 578/2023 heart surgery on 12.01.2023 and the same was indicated in the online HRMS form itself, the Transfer Committee has recommended the transfer of the applicant without considering the claim and no reasons have been stated while recommending such transfer and the same is contrary to clause 6.5 of the transfer policy and no priority matrix has been considered. The committee has ignored the seriousness in respect of the applicant's husband's life threatening disease who has undergone open heart surgery and as per the policy it provides for three years retention at same station for such life threatening disease of spouse. Since the transfer committee without referring to the request of the applicant had transferred her from the present station it clearly shows the non-consideration of her request. 9.1 The learned counsel for the applicant Mr.Srinivasa Mohan further argued that since the request of other persons for retention on medical grounds of their dependents like son, etc was acceded to by the grievance committee, there is a legitimate expectation that the employees will be treated fairly and equally and the policy will be applied uniformly and equally to all. Further, the respondents are bound to consider the grievances of the applicants and take a reasoned, equitable and just decision on the basis of the transfer policy as in the case of another employee Dr.Ravikumar. The transfer policy cannot be equated with guidelines or circulars as the same was framed by the highest authority. It is binding on the respondents and the same cannot be claimed to be a document of evidence. The respondents acted in violation of their own transfer policy and hence the transfer order does not sustain in the eyes of law.
10. On the other hand, learned ASG Mr.A.R.L.Sundareswaran appeared on behalf of Mr.K.Prabakar and Mr.C.V.Ramachandramurthy counsel for the 31 OA 463, 475, 491, 492, 493 & 578/2023 respondents and argued that every department/organisation has its own policy/objective. The applicants are serving at the present place almost for 10 years and without alleging any malafide or malice in law giving the excuse of their children's education they are now challenging the order of transfer in the present OAs. Moreover the parity claimed by the applicants along with other similarly situated employees whose requests have been considered by the committee, in that matter particularly those employees have been transferred in the mid-academic year and there was only two or three months were left for their children to complete their academic session of 10th/12th standard. However the concerned authority has sought undertaking from those employees and subsequently after completion of their children's academic session, they have been relieved and they joined duty at the transferred place.
10.1 Learned ASG further contended that if at all the applicants want to be there for their children during their 10 th/12th academic session they can very well avail the child care leave, etc which the authorities will also approve. 10.2 Learned ASG has relied upon the orders passed by the Hon.Supreme court in Param Singh supra. The relevant paras of the said judgment are extracted hereunder:
A policy/ policy decision/ policy matter is made by Government after considering all the points from different angles, while framing the policy the Government also takes into consideration the administrative efficiency and other incidental matters. Once the Government takes a policy decision, it is obligatory on its officials to execute its policy in the right earnest and to achieve the objects of the policy. The rule of the law casts a duty on the administrative functionaries to act within the framework of the law, be it law made by the legislature, subordinate legislation or executive orders issued under Article 73 and 162 of the Constitution. They are also obliged to follow the circulars/ memos and instructions issued by the Government. In the matter of policy decision of the Government, it is trite that Courts, in exercise of their jurisdiction, will not transgress into the field of policy decision. Court's interference is called for only on limited grounds, when it suffers from unreasonableness, arbitrariness or it is beyond legislative power or is beyond constitutional limits or public policy or against statutory provision. If the Courts have treated the policy/ policy decision / policy matter on such a high pedestal then Government's own 32 OA 463, 475, 491, 492, 493 & 578/2023 employees/ officials cannot be allowed to breach and ignore its order with impunity.
In the light of above discussion, it is demonstrably clear that even if a transfer order is found to be in violation of executive instructions or orders, Courts ordinarily should not interfere instead the affected party may approach higher authorities in the department. But if a transfer order is passed in administrative exigency or public interest and is in violation of transfer policy of the Government, then the competent authority must record brief reasons in the file for deviation from transfer policy. It is not necessary to mention said reason in transfer order. The recording of reason shall check arbitrary exercise of power and will help the judicial process and by superior administrative heads if the order is challenged by affected person. As regards the submission of learned counsel for the appellants that in the mid academic session the transfer cannot be made, this issue was considered by the Supreme Court in the case of Director of School Education, Madras and others v. O. Karuppa Thevan and another, 1994 Supp (2) SCC 666 and held as under:
"2. The tribunal has erred in law in holding that the respondent employee ought to have been heard before transfer. No law requires an employee to be heard before his transfer when the authorities make the transfer for the exigencies of administration. However, the learned counsel for the respondent, contended that in view of the fact that respondent's children are studying in school, the transfer should not have been effected during mid-academic term. Although there is no such rule, we are of the view that in effecting transfer, the fact that the children of an employee are studying should be given due weight, if the exigencies of the service are not urgent. The learned counsel appearing for the appellant was unable to point out that there was such urgency in the present case that the employee could not have been accommodated till the end of the current academic year. We, therefore, while setting aside the impugned order of the Tribunal, direct that the appellant should not effect the transfer till the end of the current academic year. The appeal is allowed accordingly with no order as to costs."
In the above noted case the Supreme Court has made it clear that there is no rule if the respondent's children are studying in the school, he should not have been transferred during mid-academic term. While transferring an employee the fact that his children are studying may be one of the considerations but in those cases where the exigency of the service is not urgent. It has been rightly pointed out by learned Standing Counsel that the appellants are members of disciplined force, where the considerations for transfer are different from other Class-III & Class-IV Government employees.
The judgment of the Supreme Court has been considered by a Coordinate Bench of this Court at Lucknow Bench in the case of Dr. S.P. Jindal v. State of U.P. and others, (2002) 1 AWC 306 (2), wherein this Court has observed that the Supreme Court in the case of Director of School Education, Madras v. O. Karuppa Thevan, 1994 Supp (2) SCC 666 does not lay down any principle of law. The relevant part of the judgment reads as under:
"2. The petitioner has been transferred from Meerut to Ghaziabad. Learned counsel for the petitioner has relied on the decision of the Supreme Court in Director of School Education, Madras v. O. Karuppa Thevan, 1994 Supp (2) SCC 666, and has urged that in view of this decision, the petitioner could not be transferred in the mid- term of his children studying in school. In our opinion, the aforesaid decision of the Supreme Court does not lay down any principle of law that a Government employee, whose children are studying in school, cannot be transferred during the mid-term of his children studying in school. The aforesaid decision is mere a direction of the Supreme Court without laying any principle of law. Such direction without laying down any principle of law is not a precedent.
33 OA 463, 475, 491, 492, 493 & 578/2023
3. A writ lies where there is any error of law apparent on the face of the record and not merely because there is some hardship to the petitioner. Most of the Government employees have children and if it is held that they cannot be transferred in mid-term of their children studying in school, there could hardly be any transfer. The aforesaid decision of the Supreme Court does not lay down any principle of law. Transfer is an exigency of service. Hence, we cannot interfere with the impugned transfer order dated 31.10.2001. However, the petitioner may make a representation to the higher authority who will decide the same preferably within a month thereafter in accordance with law. The petition is disposed of."
10.3 Learned ASG, to refute the contention of the applicant that the policy has not been followed strictly, has submitted that in the present matter policy has been followed and implementation of the policy cannot be done as per the convenience of the applicants. In support of the same he has relied upon the order of the SK Nausad Rahaman supra the relevant paras of the said judgment are extracted hereunder:
"24 First and foremost, transfer in an 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 postings 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."
10.4 Learned ASG on the point of judicial review has argued that this tribunal is only having limited power under judicial review and this is not a court of appeal and to support his contention he has relied upon the judgment in Punjab & Sind Bank & Others Vs. Durgesh Kumar supra and the relevant para of the said judgment is extracted hereunder:
"17 We must begin our analysis of the rival submissions by adverting to the settled principle that transfer is an exigency of service. An employee cannot have a choice of postings. Administrative circulars and guidelines are indicators of the manner in which the transfer policy has to be implemented. However, an administrative circular may not in itself confer a vested right which can be enforceable by a writ of mandamus. Unless an order of transfer is established to be malafide or contrary to a statutory provision or has been issued by an authority not competent to order transfer, the Court in exercise of judicial review would not be inclined to interfere. These principles emerge from the judgments which have been relied upon by the appellants in support of their 34 OA 463, 475, 491, 492, 493 & 578/2023 submissions and to which we have already made a reference above. There can be no dispute about the position in law."
10.5 Learned ASG further argued that the respondents have nowhere mentioned in the notification that recruitment/selection is post based or institution based. They were advised to apply separately for each post only for the sake of administrative convenience. Once the condition mentioned in the offer of appointment has been accepted by all the applicants without any objection, now questioning the said appointment after almost 8 to 10 years estoppel also lies in such cases against the applicants. Learned ASG further argued that the policy guidelines in respect of para 3.2, for the option as per the choice of the applicants/employees it was the employer who has to consider the same along with relevant factors with the other employee's options/preference and accordingly the applicants were posted following with the ratio and parameter as per para 3.2 of transfer policy. Most of the applicants have been posted as per the options only. The applicants once submitted their options, after issuance of transfer order they cannot raise the objection on the ground that the respondents have not given preference to their first option and level allegations against the respondents. So far none of the applicants in the OA has alleged any malice in law or malafide against the respondents. As observed by the Hon.Supreme court in various orders and in Punjab & Sind Bank & Others Vs. Durgesh Kumar supra, transfer cannot be questioned by the employee or court cannot entertain if no such allegations are levelled.
10.6 Learned ASG has strongly opposed the claim of the applicants for retention on the ground of life threatening disease of spouse stating that the applicants who have opted for the employment under the respondents are fully aware that they are working in the organisation which is meant for the 35 OA 463, 475, 491, 492, 493 & 578/2023 ESI Corporation being a medical/educational institution and they have been posted to major cities and are fully aware about the infrastructure and they can very well take care of their spouses even on transferred place. In support of his contentions, learned ASG has relied upon the following decisions:
1. Shilpi Bose (Mrs.) & Ors, v. State of Bihar && Ors AIR 1991 SC S32
2. N.K. Singh v. Union of india & Ors (1994) 6 SCC 1998
3.State of U.P. v. Gobardiar Lal (2004) 11 SCC 402
4.Rajendra Singh v. State of UP (2009) 15 SCC 178
5.Union of India and others v. H.N.Kirtana (1989) 3 SCC 445
6.National Hydroelectric Power Corporation Limited v. Shri Bhagwan (2001) 8 SCC S74
7.Union of India and others v. Lt. General Rajendra Singh and another (2000) 6 SCC 698
8.State of U.P. and another v. V. Johri Mal (2000) 4 SCC 714
9.Union of India and others V. Janardhan Debanath and another (2004) 4 SCC 245
10. Somesh Tiwari V. Union of India and others, (2009) 2 SCC 592
11. Bank of India v. Jagjit Singh Mehta (1992) 1 SCC 306
12. Union of India v. SL Abbas (1993) 4 SCC 357
13. Union of India and another - Vs -Dipak Niranjan Nath Pandit (2020) 3 SCC 404.
14. Rajendra Roy Vs. Union of India (1993) 1 SCC 148
15. Rajesh Gupta Vs. Bharat Sanchar Nigam Ltd. & ors. ILR (2009) M.P. 103
16. State of U.P. and others vs. Siya Ram and others. (2004) 7 SCC 405
17. State Of Madya Pradesh & Ors vs Sri S.S. Kourav & Ors: 1995 AIR 1056.
1995 SCC (3) 270
18. Gujarat Electricity Board & Anr vs Atmaram Sungomal Poshani 1989 AIR 1433: 1989 SCC (2) 602 36 OA 463, 475, 491, 492, 493 & 578/2023
19. Namrata Verma Vs State Of U.P SLP (C) 39717 of 2020
20. Hemesh Bhavsar Vs State of Rajasthan S.B. Civil writ Petition No. 2323/2023
21. All India ESIC Employees Federation Vs ESIC & Another W. P. (C)8623/2023.
22. S.C Saxena Vs Union of India Civil Appeal No. 280 of 2003
11. For the first time transfer policy was issued on 20.06.2022 with the approval of the Hon. Minister for Labour & Employment/Chairman ESIC. All the applicants in the present OAs are working at same place from their date of appointment and have completed almost 10 years or more. Each transfer policy is different for different parties, as per the organisation's requirement or exigencies and the same cannot be compared. A deep knowledge of organisational structure and functioning is required to assess the transfer and postings. After the transfer policy is formulated and after reconstitution of grievance redressal committee, the transfer committee advised and followed the standard pertaining to the procedure to simplify the Herculean task for giving recommendation to more than one thousand transfers. The grievance redressal committee scrutinised the documents and sent it to the Medical board and other departments for the purpose of arriving at definite conclusion to resolve the grievances. However, though the applicants have submitted their grievances to the grievance redressal committee and without waiting for the order of the grievance committee they have approached this Tribunal hurriedly. In view of the same the OAs are premature and not maintainable. It is further argued that the applicants who are working at same station at same place have not been disturbed prior to this transfer and though the applicants are fully aware that the transfer is an incident of service more particularly when the applicants who have participated in the selection under 37 OA 463, 475, 491, 492, 493 & 578/2023 recruitment notification/advertisement issued in the year 2011, the condition clause was very clear in the application proforma which has been affirmed by the applicants that if selected they are willing to serve anywhere in India and subsequently when applicants were selected they have been issued with the offer of appointment with condition that he/she will be posted at present institution for which applicant has applied but he/she will be liable to be posted anywhere in India and also required to undertake the tours. Thereby the applicants have conveyed their unconditional acceptance in writing and undertook that the conditions imposed by the employer will be fulfilled. Once they enjoyed the fruits under the appointment, after issuance of such transfer, it is not open to the applicants to challenge the same belatedly since the cause of action arose to them on the day when they have received the said offer of appointment. Moreover, the said transfer policy is in accordance with the service conditions that was stipulated by the respondents and accepted by the applicants and is well within the principle of reasonableness fairness and legality.
12. It is further argued that the transfer committee has recorded reasons for its recommendation in case of each faculty and the same has been communicated to all the applicants through their online portal. Hence the orders of transfers are fair, reasonable and in accordance with law. The Transfer committee in its proceedings having examined the weightage claimed by the applicant as per the Annexure -1 of the transfer policy for clinical testing and the grievance submitted by the applicants are pending before the transfer grievance redressal committee.
13. The respondents further argued that in case of a transfer of mid- academic session on account of administrative exigencies and option to retain 38 OA 463, 475, 491, 492, 493 & 578/2023 the corporation accommodation list up to the end of the academic session will be allowed to the officer if any child studying at that station or spouse of the employee employed at that station. Since transfer of the applicants have been made in public interest they are eligible to claim for TA/DA on their joining as per the rules and also eligible to avail 10 to 12 days joining time and composite transfer grant of 80% of the basic pay, they are also eligible to transfer of the personal effects to their place of posting without any cost to their account. The transfer committee which has considered the weightage marks with respect to all the candidates who have exercised their option and only after considering all the relevant aspects, recommendations were made. The recommendations made were without any malafide un-biased and by competent persons through the committee. While recommending the transfer, the transfer committee had several meetings to examine the matter. The committee follows the principles of Transfer policy dated 20.06.2022 for recommending the candidates for transfers. The brief of steps followed by Transfer Committee are as under:
1.Candidates are examined for completion of normal tenure (6 years) request transfer with completion of minimum tenure (3 years) and compassionate transfer request (requiring deviation from norms of transfer policy)
2.Doctors due for retirement on superannuation within a year are not considered for transfer in general (clause 7.7 of the policy)
3.The committee examined the weightage claimed by the applicants as per Annexure I of the transfer policy for clinical posting.
4.Based on above the doctors for transfer are shortlisted and considered for posting in the priority as mentioned in clause 3.2 of the policy.
39 OA 463, 475, 491, 492, 493 & 578/2023 Committee decided as far possible to post Non PG DGMO in Dispensaries and utilize PG qualified GDMO in hospitals/colleges.
14. The main thrust of the argument of the learned counsel for the applicant is that when the advertisement has been issued in accordance with the recruitment rules wherein specifically it is mentioned that the appointments have to be made ordinarily at State level and it is institutional basis appointments. If the applicants want to apply for more than one institution then they have to make separate application and even though if they want to apply for more than one post they have also have to apply by separate application. After their successful selection the applicants joined in the present institution according to their appointments and since then they are working in the organisation devoting their duties to the full satisfaction of the respondents. Moreover, when applicants have applied for more than one institution as well as for more than one post and they got selected for the same post in more institutions, the respondents have given them the choice to opt for accordingly the applicants have opted the present institution. Nowhere in the advertisement or in the recruitment rules it has been mentioned that these posts are transferable in anywhere in India. However, the respondents themselves have inserted the clause/condition in the appointment orders that their posts are transferable though initially they will be posted at present institution and although from 2011 onwards till 2022 the advertisement/notification was issued by the respondents in same nature no one has been transferred till such time. For the first time in the year 2022, the respondents have framed the transfer policy wherein along with other category they have included the teaching faculties even though the guidelines of the transfer policy has not been followed by the respondents while issuing the said transfer order.
40 OA 463, 475, 491, 492, 493 & 578/2023
15. In fact while issuing the said transfer orders the recommendation committee has neither followed the guidelines of the transfer policy, nor looked into the grievances of the applicants and option submitted by them in hierarchy/chronology. The applicants though have submitted their detailed grievance before the grievances redressal committee in respect of their spouse illness, life threatening disease of dependents of family and school/college going children's education, they have been transferred but not according to their preferential choice for which no reasons have been mentioned. Hence the said transfer orders are against the policy as well as law and for the first time the respondents are taking undue advantage of the condition/clause mentioned in the appointment order hence the applicants are having an opportunity to challenge such condition which is contradictory to the notification as well as recruitment rules and the same is bad on face of law itself.
16. It is further contended by the learned senior advocates representing the applicants that when DOPT has repeatedly giving instructions and instructed the department while framing the recruitment rules they have to follow certain parameters/guidelines in which this transfer liability also have to be included. Though the respondents have framed the recruitment rules in the year 2009, subsequently amended the same in the year 2015 and even thereafter in the year 2022 they have not followed the OM dated 31.12.2010 issued by the DOPT in respect of formats and forms which are extracted supra. Hence the learned senior counsels submitted that the applicants have all rights to challenge their appointment order as well as the said transfer impugned in the present OA.
41 OA 463, 475, 491, 492, 493 & 578/2023
17. It is to be noted that bare reading of the recruitment rules issued in the year 2009 under the procedure and manner of selection in respect of direct recruitment it has been mentioned that the same ordinarily be made at State level. Though the notification has been issued on the institutional basis it does not reflect that after appointments the applicants will work at particular institution till their date of superannuation.
18. It is to be noted that in the application proforma issued along with one of the notification issued in the year 2011 it has been specifically mentioned if selected the applicant has to give an undertaking that if selected he/she is willing to serve anywhere in India and the applicants have accepted the said condition. Not only this, after successful selection when applicants have been issued with the appointment order, the condition was very well imposed by the respondents in the memorandum wherein at condition No.3(d) He/she will be posted at ESIC PGIMSR & Medical College, K.K.Nagar, Chennai Tamil Nadu at the present but he/she will be liable to be posted anywhere in India and also required to undertake tours. Accordingly the applicants have submitted their willingness and joined the post unconditionally.
19. It is to be noted that when for the first time when the transfer policy has been framed attempt has been made to challenge the said transfer policy and the employees of the ESICs have agitated their grievances before the competent authority. However, the same has not been resolved. Hence the employees' union All India Employees State Insurance Corporation Employee's Federation has filed OA 529/2023 before the Principal Bench, CAT, New Delhi challenging the same where stay has been refused against which the said Federation has filed WP No.8623/2023 before the Delhi High court wherein the high court vide its order dated 28.06.2023 observed thus:
42 OA 463, 475, 491, 492, 493 & 578/2023 "8. We are unable to find any infirmity in this view. As a matter of principle, ordinarily, transfer policies cannot be stayed wholesale, even if they are challenged. It is well settled that the mere establishment of a prima facie case does not entitle an applicant or a petitioner to interlocutory injunctive relief. A stay can be granted only if the troika of a prima facie case, balance of convenience and irreparable loss is found concomitantly to exist in the matter. The learned Tribunal was, in our view, perfectly justified in observing that it would not be advisable to stay the transfer policy as a whole.
9. The question of whether to grant, or not to grant, interlocutory relief, is a matter of judicial discretion, and does not ordinarily brook interference by certiorari, save and except where the manner of exercise of discretion is manifestly illegal or perverse.
12. Without commenting on the correctness of the order dated 24 May 2023 passed by the learned Tribunal in the case of Dr. Meenu Mittal, we may only observe that the legal position with regard to granting of interlocutory stay against transfer orders is no longer res integra. There is a wide swathe of authorities, starting from U.O.I. v. S.L. Abbas1 , which hold that transfer orders are ordinarily not to be interfered with. In a recent decision passed by a division bench of this Court in Alok Kumar Verma v. UOI2 , this Court has noted the law that has developed on the point and observed that, as things stand today, the only real ground on which a transfer could be challenged is if it is actuated by mala fides. No such allegation, much less material or evidence, is forthcoming in the present case."
20. It is to be noted that transfer is an incident of service personally to the employee. As and when the employee is affected he can have the right to challenge the said transfer but the employees cannot have the right to question the policy decision taken by the Government department in public interest at large. To streamline their functions with better prospects towards their object. It is to be noted that though attempt was made to challenge the said policy, the employees have not succeeded and still the matter is sub judice.
21. It is also to be noted that it was well within the knowledge of the applicants that the department is implementing the policy hence the options were called from the employees including the applicants accordingly the 43 OA 463, 475, 491, 492, 493 & 578/2023 applicants have submitted their options in the month of December/ January/February and given their preference of five choices.
22. It is to be noted that for the first time department was taking the decision on the transfer may be they have not followed with the schedule prescribed under the policy strictly however, the transfer has been issued as per the policy and as per the choice submitted by the applicants. Once the applicants have chosen to submit their choice after receipt of the transfer order they cannot question the same on the ground that their preferences of choice in accordance with priority has not been considered or the applicants do not have the right to claim the transfer as a matter of right to a particular place. The applicants who have submitted the proforma application at the time of recruitment where the condition was specifically mentioned and subsequently also when they received the appointment order the said condition in respect of serving anywhere in India was there and the applicants have submitted their willingness and unconditionally accepted the same.
23. It is to be noted that the applicants are in such a noble, life saving profession and though they are teaching faculties, they cannot come with such excuses of their spouse/dependent family member illness, particularly when they themselves are doctors and have been transferred to the metro cities.
24. It is to be noted that moreover in the recent order of the Hon.Supreme court in the matter of Mr.Namrata Verma Vs. State of UP in SLA (C).No.36717/2017 order dated 06.09.2021 it has been 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 requirements."
44 OA 463, 475, 491, 492, 493 & 578/2023
25. It is also to be noted that as held by the Hon.Supreme court in CA 280/2003 in the matter of Saxena Vs. UOI and others, vide order dated 21.02.2006, "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/her duty to first report for work where he is transferred and make a representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed."
26. Repeatedly the Hon.Supreme court has reiterated their observation in respect of transfer of Government servant appointed to a particular cadre of transferable post from one place to other is an incident of service. No government servant has legal right for being posted at any particular place. Transfer from one place to another is generally a condition of service and the employee has no choice in the matter. The transfer from one place to other is necessary in public interest and essential in the public administration and whenever the public servant is transferred he must comply with the order but if thereby any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority and request for stay/modification or cancellation of the transfer and if it is not stayed/modified or cancelled, the concerned public servant must carry out the order of transfer in the absence of any stay of the transfer order. A public servant has no justification to avoid or evade the transfer order merely on the ground that having made representations or on the ground of his/her difficulty in moving from one place to other and if he fails to proceed on transfer in compliance with the transfer order he would expose himself to the disciplinary action under the relevant rules.
45 OA 463, 475, 491, 492, 493 & 578/2023
19. It is to be noted that in the present cases also they have submitted their grievance to the grievance redressal committee and simultaneously approached this Tribunal since the grievance redressal committee has not taken a decision. It is to be noted that another excuse given by the applicants is that they are having school/college going children and they will face language barricades and this argument is not sustainable, once they accepted the appointment with undertaking that they will serve anywhere in India. In the case of some of the applicants their children are admitted to 10th/12th standard for the academic year 2023/2024 and paid the school/coaching/tuition fees and the middle of the year if their parents, particularly mothers are transferred their education will be affected. Hence this Tribunal in OA 469/2023 & batch after relying upon the committee's decision wherein such relaxation has been given to the similar employees vide order dated 04.09.2023 disposed of the said OAs by directing the respondents to relax the joining period of the applicants therein (mothers) by retaining them at their original place (present place) where the applicants therein (mothers) are working, till the completion of the academic session of their children who are in 10th/12th Standard by taking necessary undertaking from the applicants therein (mothers) by taking undertaking from them that they will join at the transferred place after completion of the academic session of 10th /12th standard. In the present OAs also, the applicants who are mothers of children studying in 10th /12th standard can be exempted till the end of the academic session by obtaining such undertaking. With regard to other applicants I do not find any merit in the matter though the applicants initially have challenged the transfer order dated 20.05.2023 however subsequently attempt was made in OA 578/2023 to challenge the appointment order as well as transfer policy, the same is not acceptable since 46 OA 463, 475, 491, 492, 493 & 578/2023 they themselves have submitted the unconditional willingness at the time of appointment and while following with the transfer policy they have submitted their option form. Just because the respondents have not given the transfer as per their preference of choice, they cannot have the right to seek setting aside of the transfer order. Moreover none of the applicants in the OAs have made any allegations of malafide or malice in law and as held by the Hon.Supreme court in a catena of their proceedings, hence transfer cannot be interfered. In view of the same no merit is made out. OAs are dismissed. The applicants are directed to report to the duties at the transferred place since they are the life saving doctors to support the administration by serving in the exigencies. As far as concerned to their pending grievances before the grievance redressal committee, the applicants are at liberty to pursue with the said committee and the committee shall consider the grievances of the applicants looking into the administrative constraints. Interim order already granted in all the OAs stands vacated. No order as to costs.
(Lata Baswaraj Patne) Member (J) MT 18.10.2023 47 OA 463, 475, 491, 492, 493 & 578/2023 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH OA No.463, 475, 491, 492, 493 & 578/2023 Date of order: 18.10.2023 Dr.S.Shobana & Ors APPLICANT(S)/ PETITIONER(S) M/s TVJ Associates in OA 463/2023 ADVOCATE(S) FOR THE Mr. N.S.Amogh Singh APPLICANT in OA 475/2023 M/s.S.Nedunchezhiyan in OA No.491/2023, 492/2023 & 493/2023 & 578/2023
-VERSUS-
Union of India, By its Secretary, RESPONDENT(S)
Ministry of Labour and
Employment,
Mr.C.V.Ramachandramurthy in ADVOCATE (S) FOR THE
OA 463,475/2023 RESPONDENTS
Mr.K.Prabakar in OA 491, 492,
493 & 578/2023
CORAM:
HON'BLE SMT. LATA BASWARAJ PATNE, JUDICIAL MEMBER
1. Whether reporters of local newspapers may be Yes/No
allowed to see the Judgment?
2. Whether to be referred to the reporter or not? Yes/No
3. Whether the Judgment is to be circulated to other Yes/No
Benches of the Tribunal?
Judgment pronounced by (LATA BASWARAJ PATNE)
Judicial Member