Central Administrative Tribunal - Bangalore
Dr Thejaswini Sp vs Employees State Insurance Corporation ... on 24 February, 2023
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OA.No.496/2021/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00496/2021
Order Reserved on: 10.01.2023
Date of Order: 24.02.2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
Dr. Thejaswini S.P,
Age:39 years,
W/o Dr. Raghu Nagaraj,
Working as Chief Medical Officer (CMO)
At ESIC Hospital Peenya on diversion to Peenya,
From ESIC- PGIMSR Rajajinagar,
Bangalore-560 010. ..Applicant.
(By Advocate Smt Akkamahadevi Hiremath)
Vs.
1.Union of India,
Ministry of Labour & Employment,
Government of India, Nirmal Bhavan,
New Delhi-110 011,
Represented by its Secretary.
2. Employees State Insurance Corporation,
Hqrs. Office, Panchadeep Bhavan,
C.I.G Marg, New Delhi- 110002,
Represented by its Deputy Director (Med Admin).
3. The Employees State Insurance Corporation
Model Hospital & PGIMSR, Rajajinagar
Rajajinagar, Bangalore-560 010
Represented by its Deputy Director (A).
4. The Employees State Insurance Corporation Hospital,
Rudrapur-263153, Uttarakhand State,
Represented by its Medical Superintendent.
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OA.No.496/2021/CAT/Bangalore Bench
5. Employees State Insurance Corporation,
Hqrs. Office, Panchadeep Bhavan,
C.I.G Marg, New Delhi- 110002,
Represented by its Director General.
6. The Employees State Insurance Corporation
Model Hospital & PGIMSR, Rajajinagar
Rajajinagar, Bangalore-560 010
Represented by its Dean.
7. The Employees State Insurance Corporation
Model Hospital & PGIMSR, Rajajinagar
Rajajinagar, Bangalore-560 010
Represented by its Medical Superintendent. ....Respondents
(By Shri N. Amaresh, Sr. Panel Counsel)
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
a) To set aside the order No.22/13/1/2018-Med.IV, dated 07.10.2021 (Ann-A1) passed by the Respondent No.2, to the extent of transfer of the applicant at Sl.No.6 of the said order from ESIC PGIMSR, Rajajinagar (on diversion to Peenya) to ESICH, Rudrapur.
b) To set aside the relieving order No.532/A/24/Doctors.Misc-
2019.Vol.III dated 08.10.2021 (Annexure A-2) passed by Respondent No.3 to the extent that it relieves the applicant at Sl.No.6 of the said order.
c) Grant any such relief as deemed fit in the facts and circumstances of the case.
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2. The facts of the case as pleaded by the applicant in her pleadings, are as follows:
a) The Applicant was appointed as Insurance Medical Officer (IMO) Grade-II in ESIC-PGIMSR at Rajajinagar, Bangalore on 01.7.2009 after completion of her MBBS. The Applicant was promoted to IMO Gr-I in 2013. Thereafter, after further completion of 5 years, the Applicant was promoted to the post of Chief Medical Officer (CMO) on 13.09.2021 and has been working as CMO. The Applicant completed her PG-Diploma in OBG under In-service Quota in 2018 (at her own expenses though she was eligible for paid study leave).
b) The Respondent ESIC issued Rationalisation order dated 21.1.2019 stating that there were excess posts and sought to rationalize the medical officers of all departments in non-teaching and teaching posts.
c) The Applicant was asked to exercise option for transfer as she was shown as excess in the department of OBG. The Applicant challenged the said Rationalisation Order in OA No. 217/2019 along with several IMOs and CMOs and those above the level of CMOs. This Tribunal vide judgement dated 24.1.2020 dismissed the OAs filed by the Applicant and others. A common order was passed in all the matters, wherein it was held that only those who are above the CMO level are liable for all India level transfers. Since the Applicant is not above the level of CMO, she is not liable for transfer.
d) There is no All India Seniority of IMOs below the CMO-NFSG level officers, such as the Applicant. Therefore, without there being an All 4 OA.No.496/2021/CAT/Bangalore Bench India Seniority List, they cannot be considered for All India Transfer.
Any All India transfer without a seniority list makes it an arbitrary action of pick and choose which will be in the face of rule of seniority in the matters of transfer.
e) The ESIC Hqrs. issued Rationalisation Order dated 13.5.2020, superseding the earlier Rationalisation order dated 21.1.2019. Thereafter, the Applicant was diverted from Rajajinagar Hospital to Peenya ESIC Hospital on 07.8.2020. While she was working in the Peenya ESIC hospital, the Applicant was transferred on 07.10.2021 to the 4th Respondent Hospital at Rudrapur.
f) The applicant has stated that the impugned Transfer Order dated 07.10.2021 is in violation of the Transfer Policy dated 10.08.2018 of the ESI Corporation on the following grounds:
i) The normal tenure of the Medical officer at any place of Posting shall be 5 years, and only in exceptional case it can be extended beyond 5 years.
ii) The Applicant has not completed 5 years in the Peenya Hospital as she was first diverted from Rajajinagar to Peenya on 07.08.2020 and the second transfer to Rudrapur, Uttarakhand was effected on 07.10.2021
iii) Though the transfer is euphemistically coined as diversion this Tribunal has held that the diversion is nothing but a transfer.5
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iv) There is no concept of "diversion" or terminology called diversion in the transfer policy of the ESIC. Thus, the so called "diversion" i.e. first transfer, was an act of transfer and the Applicant was working in the Peenya hospital before the impugned order of transfer was passed.
v) The second transfer on 07.10.2021 is not permissible within 14 months of the Applicant's first transfer, and hence the Applicant is not liable for the transfer ordered on 07.10.2021.
vi) There are 3 sanctioned posts for IMOs for OBG department in Rajajinagar and all 3 who are PG qualified in OBG speciality are diverted to Peenya leaving behind a shortage of 3 IMO doctors in OBG department at Rajajinagar.
vii) Clause 8 of the Rationalisation Policy dated 13.5.2020 states as under:
"The SRs and IMOs placed in departments should have PG degree qualification in the respective subject. The existing IMOs in a particular discipline would be accommodated against the posts released in the discipline, failing which the post would be filled up through engagement of one year contractual senior residents against GDMO as per Hqrs office instructions No A-12/16/6/2018(contractual) Exam dated 23rd Jan 2018 on consolidated pay/remuneration."
viii) All three posts in Rajajinagar are vacant due to diversion of all three IMOs/GDMOs qualified in OBG speciality namely 6 OA.No.496/2021/CAT/Bangalore Bench Dr. Prathiba (serial no 41), Dr. Vidyashree JB (serial no 32) to Peenya before 2018 and applicant in 2020. Transfer policy is to be applied for the purpose of rotating permanent employees from one place to another once they have completed maximum tenure permissible in the place, whereas, ESIC is using transfer as a means of removing permanent employees from the post in order to create artificial vacancies there and then resort to recruitment of Temporary employees on contract basis.
ix) The Applicant is junior in the OBG department in Peenya.
The principle of seniority was not maintained in transferring the Medical officers. There are other IMOs who are senior to her and who have been in Peenya far longer than the applicant
x) The Transfer Policy dated 10.8.2018 is silent on the seniority aspect, and hence to that extent, the Central Government's Transfer Policy shall be read into the Transfer Policy dated 10.08.2018 and ESIC is bound to follow the principle of seniority in the matter of transfer.
xi) The Applicant is the junior most in Rajajinagar also. Her seniors have already completed 5 years in the same station i.e. Rajajinagar, and hence her transfer vide order dated 07.1.2021 to Rudrapur from Rajajinagar also is bad on the principle of the rule of seniority in the matter of transfer. 7
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xii) In the policy for optimum utilization of GDMOs with PG qualification order dated 25.10.2019(Ann A-19) states that all those GDMOs who have got PG qualification must be posted against the vacant posts of Sr. Residents. In the OBG department many posts of Sr. Residents are vacant in Rajajinagar, which have not been controverted by the ESIC in their pleadings, yet the Applicant has not been posted against the said Post of Senior Residents.
3. The respondents have filed their written statement wherein they averred as follows:
a) The Applicant is trying to mislead the Tribunal by misinterpreting the provisions contained in para 3 of the said transfer policy providing that "Normal tenure of a Medical Officer at any place of posting shall be a maximum of 5 years. On completion of 5 years tenure in the institution/ location, the Medical Officer shall automatically be considered for transfer. In exceptional cases, this tenure may be extended beyond 5 years on the grounds of excellence and extraordinary performance".
b) The diversion of the Applicant to ESIC Hospital Peenya by the Respondents was based on the request of the Applicant and by considering her request, the Respondents had diverted the Applicant to ESIC Hospital, Peenya.
c) In the strict sense of the term, the word diversion cannot be equated with Transfer, since diversion is for a temporary period 8 OA.No.496/2021/CAT/Bangalore Bench with an option for reverting back to the parent institution. Transfer is, posting an employee to another accounting unit for a fixed period. ESIC Hospital Peenya comes within the limits of Bengaluru Urban District and she used to draw salary at ESIC Hospital Rajajinagar. From this it is clear that the Applicant continued to be in the rolls of ESIC Hospital Rajajinagar and her diversion was a local arrangement. The orders of this Tribunal in OA No.188/2022 is a matter of record and the case of the Applicant in OA No.188/2022 is entirely different from the Applicant in the instant OA. The Applicant in OA No.188/2022 is a teaching faculty and is governed by the recruitment regulations in the cadre of teaching faculty. Being a GDMO, the Applicant cannot claim for the benefits in the orders of OA No. 188/2022 passed by this Tribunal. Hence, the diversion of the Applicant was permissible and the transfer of the Applicant is in order and legally tenable.
d) Clause 8 says that the IMOs placed in departments should have a PG degree. True. Under failing clause only contractual employee will be employees. Para 8 is being misinterpreted by the applicant by contending that as soon as an IMO acquires PG degree, they have to be accommodated under SR. Since the Applicant was transferred to some other location, the clause at S1. No. 8 will not apply in the instant O.A.
e) The contention of the Applicant that the Respondents are recruiting Senior Residents by replacing the GDMO with 9 OA.No.496/2021/CAT/Bangalore Bench temporary employees is false. As per the revised policy of ESIC, the PG Pass-outs are posted as ESIC-SR as a part of their compulsory PG bond. The Applicant has failed to submit any documentary proof to justify/substantiate her claim. As per the offer of Appointment which was accepted unconditionally by the Applicant, whereby it is clearly stated that, her cadre has all India transfer liability and she was posted in the Karnataka region for a reasonable period of time, around 14 years. Therefore, her contention is not valid in the eyes of law.
f) Strictly mechanical seniority order in a doctor's cadre cannot be followed while considering transfer-posting of a doctor. The Respondents need to see the requirement of doctor with a certain qualifications at a particular location and availability of such doctors at another location whose services can be spared in public interest.
g) Para 9 of the Transfer Policy of ESIC clearly states that, "9. Director General reserves the right to make specific exceptions for transfers on any of the condition/ guidelines appearing in this policy, on administrative grounds or exigencies or public interest."
h) Applicant has been appointed as a GDMO (based on MBBS qualification) on a regular basis. For the purpose of recruitment of Senior Residents the candidates holding PG qualifications in the concerned specialty are selected on contractual basis upto a 10 OA.No.496/2021/CAT/Bangalore Bench maximum period of 3 years as per the Central Residency Scheme of Govt. of India. Being an Employee appointed under regular services, she cannot be permitted to be appointed as a Senior Resident which is a contractual post.
i) Clause 8 will not give any immunity for the Applicant from being transferred and in the concerned para, it nowhere mentioned that such PG qualified GDMOs will be protected from All India transfer liability.
j) All the vacancies of SRs in the Department of OBG are filled up by our PG pass-outs as ESIC-SR as a part of their compulsory bond.
k) The CGHS rules are not applicable for the employees of the ESIC.
Method of recruitment, salary and allowance, discipline and other conditions of service does not include even the transfer policies framed by a Corporation like ESIC.
l) Transfer Policy at the best is an administrative guideline. The deviation of the same in a given case will not attract the interference by the Courts and Tribunals unless the same is hit by malafides or the transfer order has been issued by incompetent authority OR the transfer will affect the pay and Allowances and the Rank of an employee, 'Whom to be posted where' falls under the domain of an employer.
4. Heard learned counsels for the parties and perused the pleadings made by them.
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5. In the present case, the applicant has been transferred from ESIC hospital at Peenya to ESICH Rudrapur on 7.10.2021. She has stated that she was earlier transferred from ESIC Rajajinagar to ESIC Peenya hospital on 07.8.2020 and her subsequent transfer from ESIC Peenya to ESICH Rudrapur vide impugned order dated 07.10.2021 is in violation of transfer policy which provide for minimum tenure of 5 years at a particular place of posting.
6. The respondents on the other hand have stated that the transfer of the applicant from ESIC Rajajinagar to ESIC Peenya hospital was not really a transfer. It is a diversion, which was considered and ordered on the basis of the request of the employee herself and should not be counted as a regular transfer coming under the transfer policy of the respondents.
7. A careful perusal of the transfer policy issued by the respondents dated 10.8.2018, which was in force at the time of issuance of the impugned orders of transfer had the following provisions:
i. All Medical Officers would continue to be liable for posting anywhere in India.
ii. This transfer policy for posting anywhere in India will be applicable to Medical Officers belonging to the cadres of General Duty Medical Officers, Specialist, Teaching Faculty, Dental Surgeon and AYUSH. The term 'Medical Officer', hereinafter would include all doctors.
iii. Normal tenure of a Medical Officer at any place of posting shall be a maximum of 5 years. On completion of 5 years tenure in the Institution/location, the Medical Officer shall automatically be 12 OA.No.496/2021/CAT/Bangalore Bench considered for transfer. In exceptional cases, this tenure may be extended beyond 5 years on the ground of excellence and extraordinary performance.
8. A plain reading of the policy indicate that the tenure is of 5 years at any place of posting or Institution/location. In the present case, the applicant has contended that her so called diversion from ESIC Rajajinagar, to ESIC Peenya was actually a transfer and not a diversion. However, if we see the spirit of the policy, it is clear that the applicant continued to draw her salary from ESIC Rajajinagar. The two institutions, namely ESIC Hospital at Rajajinagar, and ESIC Hospital at Peenya are located in the same city i.e. Bangalore. Since the location of the institution does not really change, hence her diversion from ESIC Rajajinagar, to ESIC Peenya hospital, both located in Bangalore city itself, cannot be considered to constitute a transfer, particularly keeping in view the fact that the applicant has all an India transfer liability.
9. There is no doubt that the applicant had joined as IMO Gr II on 01.7.2009 and subsequently her entire tenure was at Bangalore itself. She, therefore, cannot count her transfer from the date on which she had been transferred on diversion to Peenya as the date from which her tenure at ESIC Peenya, Bangalore should be counted.
10. The 2nd contention of the applicant is that since she had a PG degree, hence she was entitled to be counted as Sr. Resident as per clause 8 of the resolution policy of the respondents. However, it is observed that the applicant is an IMO, occupying a regular post in ESIC. The Sr. Resident is 13 OA.No.496/2021/CAT/Bangalore Bench a doctor having PG degree who is appointed under the SR scheme on contract basis. As per the scheme, PG doctors are required to be posted as SRs as part of their compulsory PG bond. They are only employed on contract basis for a period of their PG bond. They cannot be considered as a regular employee of the ESIC. Hence, the contention of the applicant who holds a regular post of IMO, that she is entitled to be considered for appointment against the post of SR cannot be justified.
11. Strict mechanical seniority order in the cadre of GDMOs cannot be followed while considering transfers-postings. The administrative requirements of doctor with a certain qualification at a particular location, and availability of such doctors at another location whose services can be spared in public interest, also has to be considered.
12. As far as applicability of transfer rules of CGHS to ESIC are concerned, these two organisations are not comparable at all. The ESIC has a number of hospitals under its umbrella whereas the CGHS has only dispensaries and relies on Government and empanelled private hospitals for in-patient treatment. Hence the applicant's contention that the CGHS transfer policy should be relied upon cannot be countenanced.
13. During the course of the hearing, it was observed that the transfer policy of 2018 has been replaced by a new transfer policy notified on 20.6.2022. All transfers and posting are supposed to be henceforth regulated in terms of this new policy.
14. A perusal of the transfer policy dated 20.6.2022 issued by the respondents indicates that this policy is applicable to all cadres of medical officers such 14 OA.No.496/2021/CAT/Bangalore Bench as GDMOs, specialists including super specialists, teaching faculties, Dental, Ayurveda and Homeopathy performing non-administrative/ clinical functioning, referred to as "Doctor".
15. As per this revised policy all doctors of ESI Corporation shall be covered and will be liable for transfer and posting anywhere in India. However, for the purpose of posting on transfer under this policy, they will be considered in the following priority:
i. At the institution of their choice, failing which ii. At any of the institution situated at the station of their choice/posting, failing which iii. At any of the institution situated within the zone in which the medical officer is posted, failing which, iv. In the contiguous zones to the zone in which the medical officer is posted, failing which, v. At any location where the vacancy is created/available.
16. It is also mentioned in the policy that as far as possible, the services of GDMOs with PG qualification will preferably be utilized in ESIC Hospitals.
However, they can also be transferred/posted at any other ESIC Institution as per the administrative requirements.
17. The Zone-wise grouping of States under this new policy is as under:
S.No. Zone States
1. I Jammu & Kashmir, Ladakh, Himachal Pradesh and Punjab
2. II Delhi and National Capital Region (including Noida and
Sahibabad), Haryana (including Gurgaon, Faridabad and Manesar) and Rajasthan (including Bhiwadi). 15
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3. III Uttar Pradesh (excluding Noida and Sahibabad); Uttarakhand, Bihar and Jharkhand.
4. IV Madhya Pradesh and Chhattisgarh
5. V West Bengal, Assam & Entire NEZ and Odisha
6. VI Maharashtra, Goa and Gujarat
7. VII Andhra Pradesh, Telangana and Karnataka
8. VIII Tamil Nadu, Puducherry and Kerala
18. The Objectives of the transfer policy, as declared, is as under:
a) To meet organizational requirement of doctors with varied experience and job knowledge.
b) To provide an opportunity to all doctors to improve their proficiency, self- development and career path.
c) To groom officers for taking positions in higher rank and utilise their experience earned with age and position.
d) To conform to various DoPT/ Government guidelines/ Supreme Court directions, as far as possible.
e) To implement Central Vigilance Commission (CVC) guidelines regarding rotation of doctors at clinical postings and in sensitive posts.
f) To have right person at right position and place.
g) To have transparency in transfer and posting.
19. The new transfer policy apparently considers the Administrative requirements of ESIC as well as the convenience of the doctors, while taking into account their transfers/ postings. In the present case, the applicant while working in Bangalore (Zone VII), has now been posted to ESIC, Rudrapur, which falls under Zone III.
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20. Keeping the above in view, it would be appropriate for the respondents to reconsider the impugned transfer order issued by them in line with the new transfer policy dated 20.6.2022.
21. Accordingly, the OA is allowed. The impugned orders dated 07.10.2021 and 08.10.2021, qua the applicant, are set aside and the respondents are directed to reconsider the transfer of the applicant under the new transfer policy, which has been notified on 20.6.2022 and to issue a reasonable and speaking order keeping the new policy in view.
22. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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