Central Administrative Tribunal - Patna
Dr Ashish Kumar vs Cghs on 21 September, 2022
-1- OA/050/00259/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
OA/050/00259
59/2022
Reserved on: 30.08.2022
Pronounced on: 21.09.2022
CORAM
HON'BLE MR. M.C. VERMA, JUDICIAL MEMBER
HON'BLE MR. SUNIL KUMAR SINHA, ADMINISTRATIVE MEMBER
Dr. Ashish Kumar, Son of Sri K.P. Sah, Medical Officer, Welln
Wellness
ess Centre No.
2, Central Government Health Scheme (CGHS), Kankarbagh, Patna,
Resident of Flat No. 10/F, Karpoori Sadan, Ashiyana Digha Road, Patna--
800025 (Bihar).
.... Applicant.
By Advocate: - Shri M.P. Dixit
-Versus
Versus-
1. The Union of India through the Secretary, Ministry of Health &
Family Welfare, CHS Division, Government of India, Nirman
Bhawan, New Delhi, Pin Code- 110001.
2. The Director General of Health Services, Ministry of Health & Family
Welfare, CHSS Division, Central Government Health Scheme (CGHS),
Government of India, Nirman Bhawan, New Delhi-110011.
Delhi
3. The Additional Secretary, Ministry of Health & Family Welfare, CHS
Division, Central Government Health Scheme (CGHS), Government
of India, Nirman Bhawan,
wan, New Delhi-110011.
Delhi
4. The Director, Ministry of Health & Family Welfare, Central
Government Health Scheme (CGHS), Government of India, Nirman
Bhawan, New Delhi-110011.
5. The Additional Director, Central Government Health Scheme,
Ministry of Health & Family Welfare, Government of India, 54,
Chhaju Bagh, Patna- 800001.
6. The Sr. Superintendent of Post Offices, Patna Division, Patna-Patna-
800004.
.... Respondents.
By Advocate(s): - Shri H.P. Singh, Sr. Standing Counsel
ORDER
Per S.K. Sinha Sinha, A.M: Aggrieved with the order dated 14.02.2022 by Additional Director, CGHS, Patna transferring him from Wellness
-2- OA/050/00259/2022 Centre Centre-02 02 (Patna) to Wellness Centre, Darbhanga, the applicant has preferred this OA praying to quash and set aside the impugned order and to o direct the respondents to allow him to continue at Patna without disturbance. The applicant also made a prayer for interim relief to stay the applicant's transfer vide order dated 14.02.2022.
2. Background facts emerging from the OA are that the applicantt joined Central Health Service Group (A) on 10.01.2014 through UPSC examination and worked as Medical Officer at CGHS, Patna till 31.05.2017 when he went on study leave to RIMS, Ranchi for Post Graduate Diploma in Radiology. He completed the course on 04.08.2019 08.2019 and thereafter went to MGM College, Jamshedpur for Senior Residency from 31.10.2019 to 05.12.2021 with the approval of competent authority. He finally joined at CGHS, Patna on 06.12.2021 and with the direction of Under Secretary, Ministry of Health Health,, Government of India he was assigned duty at Wellness Centre-II II (Kankarbagh), Patna. On 14.02.2022 Respondent No. 5 issued the impugned o order in which applicant was transferred from Wellness Centre Centre-II II (Patna) to Wellness Centre, Darbhanga.
3. The applicant nt has challenged the impugned order alleging malice against the Respondent No. 5. The applicant has alleged that Respondent No. 5 was earlier not allowing him to join at CGHS, Patna on completion of Senior Residency at Jamshedpur on 06.12.2021. The Minis Ministry try of Health had to intervene and direct
-3- OA/050/00259/2022 Respondent No. 5 to allow him to join at Patna. Within two months of his joining the applicant got a flat allotted to him in the Government quarters in Ashiana Ashiana-Digha Digha Road and was residing with two minor daughters. The applicant has contended that Respondent No. 5 was not competent to issue the impugned transfer orders of CHS officer and that the Transfer Committee on the recommendation of which the order is said to have been issued was without authority as the membe members rs of this Committee were not eligible to be in the Committee. The applicant has referred to the judgment of Hon'ble Supreme Court in the ccase of T.S.R. .S.R. Subramanian Vs. Union of India & Ors. to challenge the order of his transfer.
4. Respondents contesting the OA filed written statement maintaining that the transfer order was issued on the recommendation of Transfer Committee of CGHS, Patna and that the impugned order was not suffering from any illegality or procedural irregularity. The applicant's transfe transferr to Darbhanga was recommended on account of public exigency as no permanent doctor was posted at CGHS Wellness Centre, Darbhanga. A contractual doctor posted at Darbhanga earlier proceeded on long leave on 08.04.2022. The CGHS, Darbhanga is under administrative administrative control of CGHS, Patna hence hence,, the transfer order issued by Additional Director, CGHS, Patna is in accordance with the policy guidelines. Respondents further averred that individual problems raised by applicant cannot
-4- OA/050/00259/2022 be allowed to overshadow the public exigency. The Transfer Committee which recommended the transfer of doctors including the applicant was constituted as per the SOP issued by the Director of CGHS, New Delhi. The applicant has been pos posted to CGHS, Patna since 2014 and hence hence, he cannott claim that his stay at Patna was of short duration.
5. In rejoinder the applicant contested that the SOP/policy for transfer and posting of staff in CGHS across the country has not been followed by the respondents. The policy requires that three senior most CMOs should be members of the Transfer Committee, but in this case junior doctors were nominated as the Member of the Transfer Committee. Also Also, the policy required that a person with continuous stay at a station should ordinarily be transferred first, but several senior doctors staying at Patna for long duration were not being shifted.
6. After admission, we heard the rival counsel and considered the submissions and materials on record.
7. During ng the hearing, Shri M P Dixit L/C for applicant submitted ubmitted that the applicant's transfer order was not in accordance with the policy guidelines as the Placement Committee which recommended the transfer was not competent. In this regard, L/C drew our attention to the Office Memorandum dated 10.01.2014 of Ministry of Health and Family Welfare relating constitution of committees to
-5- OA/050/00259/2022 consider the proposals of transfer & postings in respect of different category of officers in CGHS ((Annexure Annexure A/6) A/6 and OM dated 10.12.2021 of Ministry of Health and Family Welf Welfare regarding the guidelines for transfer/posting of Central Health Services (CHS) doctors (Annexure 7). L/C submitted that the applicant is a doctor of Central Health Service (CHS) and the guidelines for transfer of CHS officers (Annexure A/7) requires tthe he Transfer Committee ommittee to be headed by Director General of Health Services (DGHS) but in the instant case the committee recommending the transfer was headed by Additional Director and therefor the committee was not competent. L/C also submitted that that th there ere was only one sanctioned post of Medical Officer at Darbhanga and the said post is already filled up. Hence, the transfer order was bad in law. L/C also argued that the transfer order of applicant was issued maliciously. L/C for applicant contended that the placement committee committee was required to have three senior most CMOs nominated by the Additional Directors as Members Members, whereas the Committee in the instant case did not include the senior most CMOs.
8. Shri H. P. Singh, Senior Standing Counsel contradicted the submission of L/C for applicant and drew our attention to Annexure R/8 providing the SOP/policy for transfer of staff in CGHS across the country issued by Ministry of Health and Family Welfare on 21.09.2021 21.09.2021. Ld SSC stated that CGHS doctors doctors were covered under the
-6- OA/050/00259/2022 SOP/Policy and as per para 3 (A) of the SOP/Policy which provides for composition of the committee to recommend intra intra-city and intra--
zone transfers. The SOP stipulates three distinct situations of (a) inter-city city transfer, (b
(b) inter-zonal zonal transfer, and (c) intra-city intra / intra--
zonal transfer and provides for separate composition of the committees at Para 3(A)(i), 3(A)(ii),, and 3(A)(iii) respectively. The applicant's case is of intra-city /intra--zone transfer and for that the committee is required uired to be headed by the Additional Director of the respective CGHS City/Zone. In the instant case, case the Placement lacement Committee ommittee was headed by the Additional Director of Patna Zone. To a specific query regarding the status of CGHS City and CG CGHS HS Zone with reference to the provision of committee for inter inter-city city transfers under para3 (a)(i), Shri Singh clarified that the inter-city city transfer under the para meant transfer from the control of one Additional Director to another Additional Director. Ld Ld. SSC also placed the hierarchy of CGHS units showing CGHS CGHS, Patna as one of the 23 CGHS City units each working under the control of an Additional Director. On further query whether Wellness Centre, Centre Darbhanga comes under the jurisdiction of CGHS Patna City, City Ld/SSC provided the list of various units functioning under the administrative control of Additional Director, CGHS Patna which included Allopa Allopathic thic Wellness Centre Centre, Darbhanga. Ld. Counsel also stated that the post of Medical Officer at Darbhanga was vaca vacant nt as the contractual doctor posted there earlier had proceeded on long leave.
-7- OA/050/00259/2022
9. The issue for consideration in the instant OA is whether the transfer of the applicant is in accordance with the policy/guidelines on transfer issued by the Ministry of Hea Health lth and Family Welfare/CGHS. It is undisputed that applicant is an officer of Central Health Service and posted to CGHS, Patna under the administrative control of Additional Director, CGHS, Patna. The Office Memorandum issued by CGHS Division of Ministry o off Health and Family Welfare dated 21.09.2021 (Annexure R/8) provides for composition of the Committee for intra-city/intra-zonal zonal transfer for all categories of staff including CGHS doctors under the administrative control of Additional Director. The Comm Committee as per Para 3(A)(iii) of the OM will be headed by Additional Director as the Chairperson and three senior most CMOs nominated by Additional Director of the respective CGHS city/zone. The Additional Director, CGHS, Patna has issued the impugned order on recommendation of the Transfer ransfer Committee ommittee as provided in the Policy.
10. The applicant's plea that the Committee did not include three senior most CMOs does not hold water as the SOP/policy provides for "three senior most CMOs nominated by AD". It is clear that the senior most CMOs in the committee are to be nominated by the Additional Director of the CGHS City/Zone. There could be several reasons including administrative and operational for some senior most CMOs not being nominated in the Committee. We find no
-8- OA/050/00259/2022 violation of the SOP/policy if the CMOs nominated in the Committee were not the senior most.
11. The applicant's argument that he got government accommodation allotted and was staying with his family does not lend support to the applicant's case as personal convenience cannot override ride the functional expediency beyond the policy guidelines. The applicant joined CGHS, Patna in 2015 and remained away from Patna CGHS for doing Post Graduate Diploma Course and Sen Senior ior Residency from May, 2017 till December, 2021. He was directed to report for duty at Kankarbagh, Patna till further orders (Annexure A A-4).
4). The posting of applicant has been decided vide the impugned order dated 14.02.2022. We do not find the impugned order order being against the SOP/policy issued by Ministry of Health and Family Welfare on transfer of CGHS staff including doctors.
12. The applicant has referred to the initial reluctance of Respondent No. 5 in allowing him to join CGHS Patna after completion of the senior residency at Jamshedpur as proof of the mala-fide fide conduct. Respondents have countered the applicant's contention stating that the applicant had not ot obtained prior approval of the competent authority for pursuing PG Diploma Course and also the applicant was on unauthorized leave w.e.f. 31.12.2019. He was allowed to join after necessary clarification was obtained from Ministry of Health and Family Welfare vide communication dated
-9- OA/050/00259/2022 24.12.2021 (Annexure R/3). Perusal of record reveals that the Additional Director Director, CGHS was requested to furnish explanation as to why the applicant, who was on unauthorized absence, allowed to rejoin CGHS Patna as Medical Officer on 05.08.2019 on completion of his PG Course. This shows that Respondent No. 5 had reasons reasons not to allow the applicant to rejoin CGHS Patna after the senior residency till some clarification was obtained from the Ministry. It cannot be called a mala mala-fide conduct.
13. The law on transfer as per various pronouncements of the Hon'ble Supre Supreme me Court is now well settled. It is an established fact that transfer is an incident of service and an employee has no right to demand posting to a particular place. It is for the employer to decide how and where to employ and employee. Hon'ble Apex Court in Shilpi Bose Vs. State of Bihar & Others reported in AIR 1991 SC 532 defined the limits of legal intervention in orders of administrative transfers as under:
"4. In our opinion, the courts should not interfere with a transfer which is 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 to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer is made 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. If the Courts continue to interfere with day-to-
day -
day transfer Orders issued by the Government and its
-10- OA/050/00259/2022 subordinate authorities, there will be complete chaos in the Administrationn which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders."
14. Further, in the case of S.C. Saxena Vs. Union of India & Others reported in (2006) 9 SCC 583 583, the Apex Court held that a government servant under orders of transfer should first join the place of transfer.
"... 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 duty to first 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..."
15. In the case of State of UP Vs. Govardhan Govar Lal reported in AIR (2004) SC 2165 Hon'ble Supreme Court observed as under:
"... Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competentnt to do so, an order of transfer cannot be lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers containing transfer policies at best may afford afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of
-11- OA/050/00259/2022 pay and secured emoluments. This court has often reiterated that hat the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision."
16. In the instant case, the applicant has not yet joined the place of transfer and rather approached the Tribunal on the ground of the transfer order being in violation of the Transfer Policy. Hon'ble Supreme Court has settled tthe he law on transfer that the courts should not interfere with a transfer unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. As discussed earlier, w wee do not find the impugned transfer order in violation of the Policy guidelines or any other statutory provisions. Also, the applicant has not put up any fact in support of the allegations of mal mal-fide.
17. In view of the facts and legal aspects discussed above, we are of the con considered sidered view that there was no illegality in the transfer of applicant from Patna to Wellness Centre, Darbhanga. The OA being devoid of merit deserves dismissal and is dismissed accordingly. No cost.
[ Sunil Kumar Sinha] [ M.C. Verma ] Administrative Member Judicial Member Srk.