Central Administrative Tribunal - Bangalore
Dr Kumar H C vs Employees State Insurance Corporation ... on 1 June, 2022
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OA.No.170/603/2021/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATIONS NO.170/00603/2021
ORDER RESERVED ON:14.02.2022
DATE OF ORDER: 1st JUNE, 2022
CORAM:
HON'BLE SHRI SURESH KUMAR MONGA, MEMBER (J)
(On video conference from Central Administrative Tribunal, Chandigarh Bench
at Chandigarh)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
(On video conference from Central Administrative Tribunal, Bangalore Bench at
Dr. Kumar H.C,
S/o Late H. Chandrashekar,
Aged about 49 years
Chief Medical Officer (NFSG),
Paediatric Department,
ESIC Post Graduate Institute of
Medical Science and Research (PGIMSR),
Rajajinagar, Bengaluru-560010.
Now transferred as CMO to
ESIC Hospital, Rudrapur, Uttarakhand.
...Applicant.
(By Advocate Shri Vishwanath Bhat - through video conference)
Vs.
1.Union of India,
Represented by the Secretary,
Department of Labour and Employment,
Ministry of Labour,
Employees' State Insurance Corporation,
No.110, Shram Shakti Bhavan,
Rafi Marg,
New Delhi-110001.
2. Employees' State Insurance Corporation,
Represented by the Director General,
Panchadeep Bhavan,
Comrade Indrajeet Gupta (CIG) Marg,
New Delhi-110002.
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OA.No.170/603/2021/CAT/Bangalore Bench
3. The Dean,
ESI Post Graduate Institute of
Medical Science and Research,
Rajajinagar,
Bengaluru-560010. ....Respondents
(By Advocate Shri N. Amaresh - through video conference)
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The present Original Application has been filed under Section 19 of the Administrative Tribunals Act 1985 seeking the following relief:
a) To quash the Office Order No.195 - bearing No. A-22/13/1/2018-Med-
VI dated 07.10.2021 qua the applicant, vide which the applicant has been transferred from ESIC, PGIMSR, Rajajinagar to ESICH, Rudrapur.
b) To direct the second respondent to continue the applicant on the post of Chief Medical Officer, ESI PGIMSR, Rajajinagar, Bengaluru.
2. The facts of the case as pleaded by the applicant in his pleadings, are as follows:
a) The applicant was appointed as Insurance Medical Officer on 12.01.2002 in ESIS (Medical), in the State Government. He was sent on deputation to ESIC, Rajajinagar, on 01.04.2003. The State of Karnataka passed an order on 31.03.2003 according permission to hand over 500 bedded ESI Hospital at Rajajinagar with its existing inventory, equipment and infrastructure to ESIC, New Delhi with effect from 01.04.2003 for conversion of Hospital into a Model Hospital. Under the 3 OA.No.170/603/2021/CAT/Bangalore Bench said order, the State Government ordered that the staff working at ESI Hospital, Rajajinagar, Bengaluru are transferred to ESIC on deputation basis for a period of three years with an option of absorption into ESIC.
b) Subsequent to Notification dated 10.10.2006, the ESIC asked the staff who were working on deputation basis from the State of Karnataka to ESIC to exercise their option for absorption. In terms of the Notification dated 10.10.2006, the applicant exercised his option for absorption in ESIC with terms and conditions to opt for institutional seniority. Accordingly, the service of the applicant was absorbed in ESIC vide order dated 11.02.2010. The gradation list in respect of the State Government absorbed Medical Officers who had opted for institutional seniority dated 01.01.2006 was prepared and published by the office of ESIC on 02.08.2012. In the said list, the name of the applicant finds place at Sl.No.14 in the cadre of Institutional Medical Officer Grade-II.
c) The applicant was granted seniority and other benefits only with effect from 01.01.2006 i.e., from the date of absorption. The applicant filed OA. No.809-832/2013 requesting to consider his service rendered from the date of deputation for all practical purposes. The said OA was allowed. The respondents implemented the said order and granted the benefits from the date of deputation i.e., 01.04.2003. The service of the applicant continued in the institutional seniority. Subsequently, vide Office Order No.32/2015 dated 15th May, 2015, the applicant was promoted as Insurance Medical Officer Grade-I w.e.f. 12.01.2006 based on the institutional seniority. Subsequently, the applicant was 4 OA.No.170/603/2021/CAT/Bangalore Bench promoted as Chief Medical Officer Grade-I on 25.02.2016 w.e.f. 12.01.2011. Vide Office Order No. 23/2020 dated 04.12.2020, the applicant was further promoted from the post of CMO in Level-12 in pay matrix (Pay Band-3 + Grade Pay of Rs.7600/- pre-revised) to NSFG in Level-13 in pay matrix (Pay Band-4 + Grade Pay of Rs.8700/- pre-revised) under DACP Scheme w.e.f. 12.01.2015. The applicant is presently working as CMO (NFSG) in the pay level 13.
d) The applicant received a letter No: A-22/13/1/2018 dated 22.02.2019 from the second respondent stating that the post of Medical Officer at ESIC, PGIMSR, Rajajinagar, Bengaluru has been rationalised and that decision has been taken to post surplus Medical Officers in other Hospitals and he was required to exercise his option in the order of preference of Hospitals to which he would like to be shifted by treating him as surplus staff of Paediatric Department at ESIC, PGIMSR, Rajajinagar, Bengaluru.
e) The applicant filed OA. No.247/2019 before this Tribunal challenging the said order on various grounds including the ground that he is not liable to be transferred in view of the terms and conditions of absorption. It was also contended that the applicant is not surplus in the department. The application filed by the applicant was heard together with other applications and a separate order came to be passed on 24.01.2020. The Tribunal upheld the order of rationalisation policy. While upholding the order of rationalisation policy, the Tribunal has given a categorical finding that all the applicants who are beyond the 5 OA.No.170/603/2021/CAT/Bangalore Bench level of Chief Medical Officers are liable to All India transfers provided they have received the benefits stipulated under it and not still covered by pre-absorption stage and below the rank of Chief Medical Officers. The applicant continued to work in the post held by him in pursuance of the order of this Tribunal.
f) Subsequently, vide Office Order No.195/2021, the applicant has been transferred from CMO, ESIC, PGIMSR, Rajajinagar, Bengaluru to ESIC Hospital, Rudrapur, Uttarakhand. The applicant is currently working as CMO (NSFG) in the pay matrix of Pay Band- 4, Level-13.
g) To the best knowledge of the applicant, ESI Hospital at Rudrapur, Uttarkhand was established in the year 2019. The said hospital is a 100 bedded Hospital. After establishment of the said Hospital, the second respondent had sanctioned the staff/manpower by an order dated 27.05.2019. Initially staff for 50 beds were released. As per the said staff/manpower pattern, the post of General Duty Medical Officers (GDMO) was sanctioned. In the Paediatrics department, totally 3+3 GDMOs were sanctioned. Out of 3+3, 3 posts were released in the Paediatrics department. Post of CMO has not been sanctioned in the ESIC Hospital at Rudrapur, Uttarkhand State. The post of GDMO in the pay level-10 in the Paediatric department was sanctioned. The applicant is working as CMO in the pay level-13 and now by order dated 07.10.2021, he has been posted to ESIC Hospital at Rudrapur, Uttarakhand State against a non-existent post. The post of CMO is not sanctioned at ESIC Hospital at Rudrapur, Uttarakhand State. The 6 OA.No.170/603/2021/CAT/Bangalore Bench transfer of the applicant being against a non-existent post, is liable to be set aside.
h) In the 174th meeting of ESIC held on 29.05.2018, a unilateral decision has been taken by the respondents that those employees absorbed in ESIC and who opted for institutional seniority will be placed in All India seniority. While treating them on All India seniority, the benefits for which they are entitled i.e., promotion and other benefits have been denied to them. The applicant has now been transferred from the present place on All India seniority basis, based on the unilateral decision of the respondents. When his case was considered on All India level basis, then the applicant is entitled for all benefits from the date of his initial appointment i.e., in the cadre of GDMO. Since he has exercised option of institutional seniority, he has been deprived various benefits not only promotion but also other benefits. Several juniors to the applicant appointed in the cadre of GDMO Grade-II are now promoted as Deputy Medical Superintendents in the Hospital. The applicant has cited one Dr. R. Ramesh who was appointed as GDMO Grade -II on 29.03.2004 whereas, the applicant was appointed as GDMO Grade -II 01.04.2003 in ESIC. However, Dr. R. Ramesh, according to the applicant, is now promoted and posted as Deputy Medical Superintendent. The respondents against the will of the applicant, treated him under All India seniority, and transferred the applicant from the present place to ESIC Hospital at Rudrapur, Uttarakhand State.
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i) The applicant opted for institutional seniority with a definite purpose of even forgoing the seniority as he wished to remain in ESIC PGIMSR, Rajajinagar, Bengaluru. The Corporation on its own cannot change the conditions which are not brought to his knowledge.
j) The respondents issued OM dated 10.08.2018 to notify the transfer policy in respect to transfer and postings of GDMOs, Specialists, Teaching Faculty, Dental Surgeons in ESIC. As per this transfer policy, no Doctor would be posted in excess to sanctioned posts for particular institution in any circumstances. The impugned order now passed is in contravention of the transfer policy of ESIC.
k) Ministry of Health and Family Welfare, CGHS, has issued transfer Policy dated 21.09.2021. As per this transfer Policy, while effecting transfer, the person with longest continuous stay at a station shall ordinarily be transferred first. The applicant has claimed that he is the junior most and one Dr. S.T. Rajappa, in the Paediatrics department at ESIC PGIMSR, Rajajinagar, Bengaluru, who is posted since the year 1989, is the senior most person. Instead of transferring him, a pick and choose method has been adopted by the respondents, against the transfer guidelines.
3. The respondents have filed their written statement wherein they averred as follows:
a) In terms of absorption in ESIC, an employee is free to opt for separate institutional seniority i.e., seniority only for the particular hospital or 8 OA.No.170/603/2021/CAT/Bangalore Bench the individual can opt to be part of all India seniority, in which case they will be liable for all India transfer and all India promotional avenues. In the case of institutional seniority, the promotion will be based on institutional seniority only subject to vacancies in the hospital.
If opting for institutional seniority, the all India posts and cadres to which they not be eligible for promotion were the Medical Superintendent of the Hospital and all officers in the pay scale of Rs.14300-18,300 (Current NFSG scale) and above.
b) Presently the applicant is working as CMO (NFSG) which is beyond the CMO cadre and drawing benefits under the same. The applicant had accepted the promotion in the cadre of CMO (NFSG) which is an All India Promotional Cadre arising out of the switching over from Institutional Seniority to All India Seniority Level.
c) In the promotion order issued vide order No.23/2020 dated 04.12.2020, vide para Nos. 3 and 4 it was clearly stated that the applicant was promoted as per the decision of the Respondent No.1 in the 174th Meeting and his name was placed in the All India Seniority list. The applicant has accepted the said promotion order unconditionally and drawn salary from the date of his promotion.
d) The applicant himself has admitted the fact that this Tribunal had dismissed the OAs challenging the rationalisation policy of ESIC.
e) As per prevailing terms and conditions of absorption, the Medical Officers had the option to choose Institutional/State seniority or All 9 OA.No.170/603/2021/CAT/Bangalore Bench India Seniority. The absorbed Medical Officers, who opted for Institutional/State seniority, were to be kept posted in hospital only as per their options and hence eligible for promotions upto to the level of CMO (Grade Pay 7600 as per 6th CPC) because promotions upto this level were time scale promotions absolutely delinked with the vacancies. Medical Officers, who opted for All India Seniority, were liable to be transferred on all India basis but were eligible for promotional posts beyond the level of CMO (i.e. to the grades of NFSG & SAG) against promotional vacancies across the Country.
f) This Tribunal in para 18 of the order dated 24.01.2020 had observed as under:
"18.Therefore, two factors emerge for consideration. It has now been settled that the policy of governance must have pre-eminence unless it is found to be malafide, illegal or arbitrary. The ESI Corporation would say that the pre-absorption scenario was applicable only upto the rank of Chief Medical Officer, beyond that and apart from that, if a person aspires for and is eligible and receives a benefit, then he or she is liable for all-India transfer as the additional qualification required and acquired by the applicant have been the result of funding advanced by the respondents. This according to us, seems to be correct. Therefore, we hold as follows:
(1) All those persons who have received special benefits in terms of career advancement must therefore hold themselves to be eligible and required to be transferable on all India basis. (2) All those persons who are just CMOs or below will be considered by the respondents as eligible to be continued employment at their places where they were absorbed or within the State as the case may be, but the all-India transfer liability will not rest on their shoulders until they are granted such prospects."
g) The above order clearly states that all those persons who have received special benefits in terms of career advancement must therefore hold themselves to be eligible and required to be transferable on all India basis. The Tribunal dismissed the OAs in question, finding that the 10 OA.No.170/603/2021/CAT/Bangalore Bench rationalization policy was in order. Therefore, surplus non-teaching doctors were to be transferred out. However, the transfer orders were kept on hold for some time due to Covid. There are several surplus doctors in Rajajinagar and ESIC is now taking action in phases to rationalize the staff strength in order to improve Medical services in units suffering from shortage of staff.
h) The posts in GDMO or Specialist cadre in any of the ESIC Medical Institution is always sanctioned in the base cadre post i.e. IMO Grade- II at level 10 for GDMO cadre, Specialist Grade-II (Junior scale) at Level 11 for specialists cadre and at Level 12 for Super Specialist. The number of posts in higher scales automatically get revised in accordance with number of Medical Officers holding such higher posts on the basis of their promotion under DACP. The strength for the institution, where the applicant is presently posted i.e Rudrapur, has been sanctioned in the similar fashion, however, he is being granted higher pay scale than the base cadre post in DACP. The applicant is therefore not being transferred to a lower post. He would continue to draw his pay at Level 13 under DACP at the transferred post as well. Hence the present transfer of the applicant to ESIC Hospital, Rudrapur is in order.
i) The issue of seniority and promotion due to switch over from Institutional Seniority to All India Seniority cannot be contested in the present OA. This will also not give the applicant immunity/protection from All India transfer liability. The promotions have already been 11 OA.No.170/603/2021/CAT/Bangalore Bench granted to the applicant in accordance to the Recruitment Rules and terms and conditions of absorption. In view of the option exercised by the applicant at the time of absorption, he is entitled for the benefits that would accrue to him by virtue of opting for Institutional Seniority. His case cannot be compared with those doctors, who initially had All India Seniority and thereby accepted the liability of All India Transfer and are entitled for promotion on All India basis to the post of Medical Superintendent of the Hospital and benefits that are attendant to such posts/promotions. The applicant cannot be compared with that of the officers who opted for All India Seniority. Thus the contention of the applicant that he is entitled for promotion because of seniority is false and is also not comparable with those who opted for All India Seniority. The option exercised by the applicant for Institutional Seniority was his own conscious decision. Therefore, he cannot compare his case with those who opted for All India Seniority and seek promotion in the present OA.
j) On the basis on 174th Meeting, ESI Corporation issued a circular dated 25.07.2018, which states that:
"......As per approval of the Corporation, all the Medical Officers absorbed shall be placed under All India Seniority and their promotion upto CMO (NFSG/SAG) shall be done as per their eligibility in the light of the ibid approved agenda. This decision of the Corporation may be communicated among such absorbed Medical Officers under your control.
In this regard, it is requested to send the complete service details/particulars of the Medical Officers absorbed to Medical Branch-VI &DPC (Medical), Hqrs' Office separately for maintaining the seniority list and initiation of their DPC as per their eligibility in the light of the aforementioned approved agenda.."12
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k) In view of the said circular, the respondent Hospital has forwarded the desired details including the applicant to Hqrs' office for further action. The issue of seniority is not having any relevancy in case of transfers of Group-A Medical Officers like the applicant.
l) The standard Operating Procedure (SOP) quoted by the applicant is for transfer and posting of staff of Central Government Health Scheme (CGHS) across the country and has been issued by the Ministry of Health and Family Welfare. This order quoted by the applicant is not applicable automatically to all Organizations. The respondents are following the Transfer Policy of GDMOs notified by the ESIC vide OM dated 10.08.2018. The order quoted by the applicant is not applicable to the respondents.
4. In his rejoinder to the reply filed by the respondents, the applicant has pleaded as follows:
a) The respondents have stated that the absorbed Medical Officers who opted for All India Seniority were liable to be transferred on All India basis, but were eligible for promotional posts beyond the level of Chief Medical Officer (to the grades of NSFG & SAG). It is submitted that the absorbed Medical Officers who opted for institutional seniority will have to be continued in the institution in view of the agreement entered into between the parties. Further, the extension of DACP for Doctors will be extended upto Senior Administrative Grade to all Medical Officers whether they belong organised services or wholly isolated posts. The contention of the respondents that the extension of NSFG & 13 OA.No.170/603/2021/CAT/Bangalore Bench SAG benefits is not a promotion. It is only placing in a higher pay. The duties and responsibilities will not change. In that sense, extension of liability for transfer under All India Seniority basis for NFSG & SAG is without any basis.
b) The applicant is not entitled for transfer from out of the institution in view of the agreement entered into between the parties. The applicant is working as CMO and he has not been promoted to the next higher cadre.
c) The respondents have contended that there are surplus doctors in Rajajinagar ESI Hospital, Bengaluru, and action is being taken in phases to rationalize the staff strength in order to improve the medical services in Units suffering shortage of staff. The applicant cannot be treated as a surplus doctor. The staff strength at ESI Hospital, Rajajinagar, Bengaluru in the Paediatrics Department is three, and out of the said three posts, only two Medical Officers are working including the applicant. If the applicant is transferred from ESI Hospital, Rajajinagar, Bengaluru, then there will be only one Medical Officer working in the Paediatrics Department in ESI Hospital, Rajajinagar, Bengaluru out of the three sanctioned posts. Therefore, the transfer of the applicant from the present place to ESI Hospital, Rudrapur, Uttarakhand will cause acute shortage of Medical Officer in ESI Hospital, Rajajinagar, Bengaluru.
d) It is submitted that ESI Hospital, Rajajinagar, Bengaluru is a 500 bedded Hospital and the ESI Hospital at Rudrapur, Uttarakhand is a 50 14 OA.No.170/603/2021/CAT/Bangalore Bench bedded Hospital. Further while effecting the transfer of Doctor in a particular Department, the Doctor who has rendered more number of years of service in that Department has to be shifted first. This aspect of the matter has not been considered by the respondents while passing the impugned order.
e) By a careful perusal of the Recruitment Rules, it is clear that the IMO/GDMOs who entered the service will be extended with the benefit of NFSG & SAG based on the number of years of service rendered by them in the isolated post. The entry grade is IMO Grade-II, which is a level in pay matrix Level-10. The IMO who enters in Grade-II in the Department, after completion of 13 years of service in the same post, is entitled for the benefit of DACP Scheme, which is Level-13 in the pay matrix. The Recruitment Rules produced by the respondents will not in any manner endeavour to the benefits of the respondents to contend that the post of IMO Grade-II and post of CMO (Non-functional selection grade Level-13) are same posts. The post sanctioned at ESI Hospital at Rudrapur, Uttarakhand is in the pay Level-10 in the Department of Paediatrics and it is not a post sanctioned in the pay Lelvel-13.
Therefore, the transfer of the applicant from pay Level-13 post to pay Level-10 post is in utter contravention of Rules and sanctioned strength in the ESIC.
f) Hon'ble Supreme Court of India in the case of Vice Chancellor, L.N. Mithila University vs. Dayanand Jha reported in 1986(3) SCC 7 held that the transfer should be made to equivalent post. Further, it was held 15 OA.No.170/603/2021/CAT/Bangalore Bench that true criteria for equivalence to be determined based on the status and nature of responsibilities and duties attached to the two posts. Admittedly, the status of the applicant is CMO in pay matric Level-13, the post sanctioned at ESI Hospital at Rudrapur, Uttarakhand is General Duty Medical Officer (GDMO) Level-10. Therefore, the transfer of the applicant to a lower status is bad in law.
g) It was contended by the respondents that the benefit extended to the applicant i.e. NFSG and SAG are only financial benefits which have been granted to the applicant and the post of IMO and CMO are one and the same. However, in page 7, they contend that the applicant has been granted promotion. They cannot take two different stands at a time. Admittedly, if the applicant has been granted promotion, then the question of transfer of the applicant to the post of GDMO at ESI Hospital at Rudrapur, Uttarakhand does not arise.
h) The applicant never opted to switch over from Institutional seniority to All India Seniority. The extension of the benefit of NFSG & SAG cannot be a ground to contend that the applicant has opted from Institutional seniority to All India Seniority, while granting a financial upgradation.
i) The entire contention taken by the respondents that in view of the extension of benefit of NFSG, the applicant has opted for All India level transfer is without any basis. The extension of the said benefit cannot be a basis for transfer on All India Seniority. It is one the basis of the number of years of service rendered in the post. The Doctors working 16 OA.No.170/603/2021/CAT/Bangalore Bench in an institutional seniority is also entitled for the said benefit. Therefore, the contention taken by the respondents that in view of extension of the benefits of NFSG and SAG, the applicant has been treated as coming under All India Seniority cannot be sustainable in Law.
5. Heard learned counsels for the parties and perused the pleadings made by them.
6. In the present case, the applicant is challenging his transfer order from ESIC, Rajajinagar, Bangalore to ESICH, Rudrapur, primarily on the ground that at the time of his absorption in ESIC, he had opted for Institutional Seniority. As per the terms of absorption specified by the ESIC, he was entitled to continue with his present post as per his Institutional Seniority at ESIC, Rajajinagar, Bangalore. He therefore could not have been transferred to Rudrapur since he does not have All India transfer liability.
7. An examination of the terms of absorption vide which the applicant had been absorbed as contained in the Annexure to notification No: 532.A- 37(18)1/2006-07 dated 19.10.2006 of ESIC indicates the following:
"4.Seniority of an employee absorbed in the Corporation will be determined either from the date from which one holds the post on deputation or from the date one holds the post in equivalent grade on regular basis in the State Government service, whichever is earlier. Seniority of two or more State Government employees absorbed in the Corporation service would however, be fixed as per the seniority existing in the State Government prior to their absorption. Before absorption, an employee will be free to opt for separate institutional seniority i.e. seniority only for the particular hospital. In this case, they will not be transferred outside the hospital even after absorption and the promotions will be based on the institutional seniority only subject to the vacancy in the hospital or the individual can also opt to be part of All India seniority, in 17 OA.No.170/603/2021/CAT/Bangalore Bench which case they will be liable for all India transfer and all India promotional avenues. If opting for institutional seniority, the all India posts and cadres to which they will not be eligible for promotion will be Medical Superintendent of the Hospital and all officers in the pay scale of Rs.14300-18300 (Current NFSG scale)."(emphasis added)
8. As can be seen from the terms of absorption, it is clearly specified that if opting for institutional seniority, then the All India posts and cadres to which the employees will not be eligible for promotion will be Medical Superintendent of the Hospital and all officers in the pay scale of Rs.14300- 18300 (Current NFSG scale) which corresponds to Level 13.
9. The issue of Institutional Seniority and the All India Seniority of various State Government medical officers which had been absorbed in ESIC on takeover of hospitals, was examined in the 174th meeting of ESIC held on 29.5.2018. In this meeting the following decision was taken:
"3.There were 184 MOs, who opted for Institution/state seniority across all taken-over hospitals. Now, many of these Medical Officers have requested many times for grant of opportunity to change their option as they lost considerable promotional avenues post implementation of DACP w.e.f. 1.3.2008. A large number of representations have been from such employees through difference channels viz. direct representations, VIP references, public grievances on CPGRAMS etc. for grant of promotion to NFSG & SAG grades. Court cases have also been filed before different CATs against dismissal of such representations by ESIC citing conditions of Terms of Absorption read with option of individuals as grounds for non-grant of promotion to NFSG & SAG.
4. As explained above, placement of individual in Institutional/state seniority and grant of NFSG &SAG scales cannot go along as per approved terms and conditions. Therefore, in larger interest and in order to maintain best human resource practices of the Corporation, we can consider these requests sympathetically for the reason that after implementation of Dynamic Assured Career Progression scheme in the year 2008 for medical officers of ESIC, as the promotions of NFSG & SAG levels were de-linked from the vacancies and also became time scale promotions. Now onwards ESIC will do away with the institutional/state seniority and each & every absorbed Medical Officer will be placed under All India 18 OA.No.170/603/2021/CAT/Bangalore Bench seniority to have equal opportunity of being promoted to the scales of NFSG & SAG. Further in case, if any representations are received from any of the absorbed MOs to still place them in institutional seniority, the Corporation shall have no objection for their repatriation to their parent organization, if the respective State Government permits so. The employee remaining in the Corporation shall be liable for All India Transfer.
5. These absorbed employees will be placed in All India Seniority w.e.f. 1.6.2018. They will be granted financial benefits of DACP from 01.06.2018. However, they will be granted notional benefits of DACP from the date of its eligibility. The date of eligibility of DACP for a particular scale to be granted to these employees will be seen with reference to the guidelines already being followed in cases of other employees who originally opted for All India Seniority."
10. Based on this decision taken in its 174th meeting, ESIC issued letter dated 23.7.2018 to all Medical Superintendent of ESIC hospital wherein it was decided that all the Medical Officers absorbed shall be placed under All India Seniority and their promotion upto CMO (NFSG) shall be done as per their eligibility in the light of the ibid approved Agenda. This decision was communicated to all such absorbed Medical Officers.
11. The applicant has been promoted to the scale of Level 13 (NFSG scale) vide orders dated 04.12.2020. In this order it is clearly mentioned that Medical Officers who opted for Institutional Seniority at the time of absorption are granted benefits of DACP from 01.06.2018 as per the decision of Corporation taken in 174th meeting with notional benefits to the scale of NFSG from the dates mentioned in the table against each name. The financial benefits were granted to the applicant w.e.f. 01.6.2018 only after he had been placed in All India Seniority, although he was placed in pay scale of NFSG (level 13) notionally w.e.f 12.1.2015.
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12. It is therefore clear that the applicant had accepted his elevation to NFSG (Level 13), and also accepted the change of his seniority from Institutional Seniority to All India Seniority consequent to his elevation. Once he has opted for benefits of grant of higher pay scale after accepting the liability of transfer under All India seniority, he cannot at this stage, challenge his transfer from Bangalore to Rudrapur on the of grounds of continuing in Institutional Seniority. In fact, the decision taken by ESIC in 2018, clearly states that "now onwards ESIC will do away with the institutional/state seniority and each & every absorbed Medical Officer will be placed under All India seniority to have equal opportunity of being promoted to the scales of NFSG & SAG."
13. This decision of ESIC was the subject matter of a challenge in OA.No.291/345/2019 before the Jaipur Bench of this Tribunal. The applicants in that OA had prayed for maintaining institutional seniority besides granting them with DACP benefits. The tribunal in that case , in its order dated 27.07.2021, had observed that most of the applicants had already accepted the condition of placement in All India Seniority as well as other conditions in pursuance of the scheme introduced by ESIC and many of them have already been transferred after placement in All India Seniority. The Tribunal, had further observed that when most of the applicants have themselves vide order dated 04.12.2020 accepted All India Seniority and have also accepted the promotional benefits and accepting all conditions, therefore, considering the subsequent developments, it is seen that ESIC had already decided to place all these Medical Officers in All India Seniority, they being 20 OA.No.170/603/2021/CAT/Bangalore Bench Group 'A' officers. Thus, having accepted the conditions of the said order and giving undertaking to that effect, the demand for promotion beyond CMO Scale in NFSG/SAG Scale as well as grant of DACP benefits having opted for All India Seniority becomes meaningless. The OA accordingly was dismissed by the Tribunal as infructuous.
14. Keeping in view the above, the contention of the applicant that he should be allowed to continue in Institutional Seniority after claiming DACP benefits and accepting higher pay scale at Level 13 is without any basis and cannot be accepted.
15. The 2nd contention of the applicant is that he has been transferred to a lower post at Level 10 at ESIC, Rudrapur, whereas he holds the post in Level 13 after grant of DACP at ESIC, Bangalore. This aspect has already been clarified by the respondents in their reply, wherein it is clearly stated that the posts in the entire cadre of ESIC are sanctioned in the base cadre posts of Level 10 in the case of Insurance Medical Officers, which is also the cadre of the applicant. The number of posts in higher scales of level 11, Level 12, Level 13 or Level 14 get automatically get revised in accordance to number of Medical Officers holding such higher posts on the basis of their promotion under DACP. The applicant would be entitled to the pay and pay scale already granted to him on account of DACP at Bangalore. Hence he would not suffer from any liability in terms of reduced pay subsequent to his transfer to Rudrapur. The contention of the applicant, that he is being transferred to a lower post is, therefore, misconceived and cannot be accepted. 21
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16. The 3rd contention of the applicant is that as per the transfer policy approved by the ESIC notification dated 10.8.2018, no Doctor would be posted in excess to the sanctioned posts for a particular institution in any circumstances. He is being transferred from Rajajinagar, Bangalore where there is shortage of staff already. The transfer of the applicant to Rudrapur will cause further staff shortage at Rajajinagar, Bangalore.
17. The issue of posting appropriate medical staff amongst various institutions of ESIC is an administrative matter to be considered by the ESIC respondents. It is for them to take an appropriate decision with regard to deployment of existing medical resources in different Institutions. Admittedly, ESIC has shortage of staff available at Rudrapur, Uttarakhand and they have to ensure availability of suitable manpower for this hospital out of the available man power resources available with them at present, including at ESI hospital, Bangalore. It has certainly not been established from the pleadings that excess Doctors have been posted at Rudrapur in violation of the transfer policy.
18. There are a plethora of judgements in Supreme Court on the issue of judicial interventions in the matter of postings and transfer of employees.
19. In Mrs. Shilpi Bose and others vs. State of Bihar and others AIR 1991 SC 532, the Honorable Supreme Court has observed as follows:
"In our opinion, the courts should not interfere with a transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed 22 OA.No.170/603/2021/CAT/Bangalore Bench in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department..................................."
20. In Union of India and others vs. S.L. Abbas AIR 1993 SC 2444, the Honorable Supreme Court has observed as follows:
"Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration"
21. A similar view has been taken in National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan and another (2001) 8 SCC 574, wherein it has been held that no Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of malafide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders, as though they were the appellate authorities substituting their own decision for that of the management.
22. Keeping in view the above observations of the Apex Court, the scope for judicial intervention in matters of transfers is limited to cases where there is a violation of any statutory rule or on grounds of malafide.
23. In the present case, there is apparently no violation of any statutory rule particularly after the placement of the applicant under All India transfer 23 OA.No.170/603/2021/CAT/Bangalore Bench liability subsequent to his elevation to NFSG grade in Level 13 of the pay matrix. There is also no allegation of any malafide in the transfer order.
24. Keeping the above in view, the OA does not have any merit and deserves to be dismissed. Accordingly it is dismissed.
25. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (SURESH KUMAR MONGA)
MEMBER (A) MEMBER (J)
/vmr/