Central Administrative Tribunal - Delhi
Sc St Medical Association vs Govt. Of Nctd on 1 December, 2016
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-1599/2016
MA-3077/2016
New Delhi, this the 01st day of December, 2016.
Hon'ble Mr. Justice Permod Kohli, Chairman
Hon'ble Mr. Shekhar Agarwal, Member (A)
1. SC & ST Medical Association (Regd.)
Through its Vice President, Dr. P.K. Rathore,
having address at 180-B,
Pocket J&K, Dilshad Garden Delhi-110095.
2. Dr Sanjeev Kumar Tudu
s/o late Labhan Tudu,
aged 50 year (Professor)
r/o D-2-94,
West Kidwai Nagar,
New Delhi-110023. ... Applicants
(Dr. P.K. Rathore, Vice President, SC/ST Med. Assc. And Sr. Sanjeev Kr. Tudu, Jt. Scty.
SC/ST Med Assc.)
Versus
1. Govt. of National Capital Territory through
Secretary, Department of Health & Family Welfare,
NCT of Delhi, Delhi Secretariat, New Delhi-2.
2. Lieutenant Governor Delhi, through Secretary,
Raj Nivas, Delhi-2.
3. Union of India, through Secretary (Health),
Ministry of Health and Family Welfare,
Nirman Bhavan, New Delhi-110011.
4. The Dean, MAMC,
New Delhi 110002.
5. National Commission for Scheduled Tribes,
Through Secretary, Lok Nayak Bhavan,
New Delhi-110003. ... Respondents
(through Ms. Harvinder Oberoi)
ORDER(ORAL)
Hon'ble Mr. Justice Permod Kohli This application has been filed by Scheduled Caste and Scheduled Tribe Medical Association as applicant no. 1 and by Dr. Sanjeev Kr. Tudu, who is serving as Head of Department in the department of Surgery in Maulana Azad 2 OA-1599/2016 Medical College in his individual capacity. Insofar as the applicant no. 1 associaton is concerned, the issues raised by it being in the nature of public interest litigation, this Tribunal cannot examine the same. Hence, the Application to this extent, is hereby dismissed. However, we examine the grievance raised by applicant no. 2.
2. Applicant no. 2 is a Professor of Surgery. He was posted in Lady Hardinge Medical College, New Delhi and was transferred to Govt. of NCT of Delhi vide order dated 21.04.2015. On being relieved from Lady Hardinge Medical College on 30.04.2015, he submitted his joining to the Principal Secretary, (Health), Department of Health and Family Welfare, Govt. of NCT of Delhi vide his joining report dated 01.05.2015. Vide order dated 20.05.2015, he was posted at Guru Teg Bahadur Hospital as Professor. However, in supersession of the said order, he was ordered to be transferred as Professor, Surgery, in Maulana Azad Medical College vide another order dated 01.07.2015. The Govt. of NCT of Delhi vide order dated 28.04.2016 ordered transfer of various doctors including the applicant. Name of the applicant figures at serial no. 73. Vide aforesaid order, the applicant has been transferred from Maulana Azad Medical College to Ambedkar Medical College (in diverted capacity). The applicant has challenged the validity of this order. The grounds urged in the OA are that (1) Ambedkar Medical College to which he has been transferred, is not one of the notified hospitals where the applicant could have been transferred in participatory units.
(2) The applicant has also alleged malafide or bias stating therein that on account of his social origin, he has been made a target giving him hostile treatment.
3 OA-1599/2016 Insofar as the second contention is concerned, there is no specific averment nor any person against whom such malafide or bias is alleged, is a party before us. We do not intend to go into this aspect. Insofar as the other contention is concerned, the applicant has relied upon Central Health Services Rules, 1982 as notified vide GSR No. 460(E) dated 08.10.1996. Schedule I and Schedule II to the aforesaid Rules specify duty post both for teaching specialist sub cadre as also the non teaching sub cadre. It is not in dispute that the applicant belongs to the teaching sub cadre. Under the teaching specialist sub cadre to which the applicant belongs, being a professor in the department of surgery, there are only three medical colleges notified with Govt. of NCT of Delhi, namely, Maulana Azad, G.B. Pant and Guru Teg Bahadur Hospital. As a matter of fact, these three colleges constitute the cadre of service for teaching faculty with NCT of Delhi where teaching faculty of Central Health Services could be transferred.
3. Learned counsel for the respondents, Ms. Harvinder Oberoi has not been able to inform the court as to how applicant's transfer to Dr. Ambedkar Hospital which is outside the specified colleges of GNCTD, is justified as the said college is not one of the notified colleges as participatory units under the rules. Her only submission is that the transfer of the applicant is in exigency of service. It is settled law that even in exigency of service or in the public interest or for that matter interest of administration, a person can be transferred only to the cadre post. Insofar as ex-cadre post is concerned, consent of the employee needs to be taken, unless the rules otherwise empower the competent authority to post a person to ex-cadre post without his consent. In the present case, no such rule has been brought to our notice which inter alia empowers the respondents to transfer the applicant to ex cadre post without his consent. Otherwise also, the applicant is in teaching cadre and is holding post of Professor (Surgery), which is 4 OA-1599/2016 the Head of Department. The post to which he has been transferred vide impugned order is not a teaching post. It is also not in public interest nor in the interest of administration that the applicant should be posted to non teaching post whereas he is the head of teaching faculty. His services could be more gainfully utilised on a teaching post. Without going into the question of malafide, though, we find that there is some kind of apparent bias and for the reason that otherwise also, transfer being in contravention of rules, this OA is allowed. Impugned order is hereby set aside. No order as to costs.
( Shekhar Agarwal ) ( Justice Permod Kohli ) Member (A) Chairman /ns/