Madras High Court
Dr. Amala Devi, Joint Director Of Health ... vs The Secretary To Government Of Tamil ... on 11 April, 2005
Equivalent citations: (2005)4MLJ149
Author: Prabha Sridevan
Bench: Prabha Sridevan
ORDER Prabha Sridevan, J.
1. This writ petition is filed against the order of transfer. The learned counsel appearing for the writ petitioner submits at the outset that while it is well settled that transfer orders are normally not interfered with in writ jurisdiction, there are special features in this case, which warrant interference.
2. The writ petitioner joined as an Assistant Surgeon on 03.6.1972. According to her, she was subjected to frequent transfers from March 1999. The dates of transfer are relevant, which are extracted as under:-
(1) Govt.Hospital, From 1.2.1999 to 24.3.1999 Dindigul.
(2) Govt.Hospital, From 25.3.1999 to 25.1.2000 Periyakulam.
(3) Govt.Hospital, From 26.1.2000 to 01.4.2000 Dindigul.
(4) Govt.Hospital, From 1.4.2000 to 18.5.2000 Periyakulam.
(5) Govt.Hospital, From 19.5.2000 to 27.11.2000 Dindigul.
(6) Govt.Hospital, From 28.11.2000 to 23.1.2001 Usilampatti.
(7) Govt.Hospital, From 24.1.2001 to 01.3.2001 Periyakulam.
(8) Govt.Hospital, From 02.3.2001 to 21.2.2002 Dindigul.
(9) Primary Health From 10.5.2002 to 07.8.2002 Centre, Puduruthamanur, Trichy District.
(10) Primary Health 08.10.2002
Centre, Thadicombu.
(11) Primary Health 23.10.2002
Centre, Eriodu.
(12) Joint Director 23.8.2003 to 09.10.2004
of Health Services.
(13) Now has been transferred to office of the Director of Family Welfare, Chennai-6 in the post of Project Officer (MTP Cell) by the impugned order."
3. According to the petitioner, she is one of the senior most Civil Surgeon and the very fact that she has been transferred so many times without assigning any reasons shows that the action of the respondents is arbitrary and mala fide. She is particularly aggrieved by the latest order of transfer, which is dated 19.10.2004, transferring the petitioner from Dindigul to Chennai and posted as the Project Officer (MTP Cell) in the Office of the Director of Family Welfare, Chennai. According to the learned counsel, this transfer is against the Government rule, which says that a government employee should not be disturbed before three years and since she has been in her present post for hardly one year, she should be allowed to continue in Dindigul. Learned counsel further submitted that from the counter it is seen that the reasons for the transfer are that a large number of complaints have been received against her from the public. According to the learned counsel, a memo was issued to her regarding several complaints and on receipt of her explanation, the then Additional Director, Medical and Rural Health Services conducted an enquiry and her enquiry report, dated 052.2004, reads thus:-
(a) That Dr. J. Amaladevi has acquired properties at Dindigul town worth Rs.1,75,800/- without prior permission of the Government.
(b) That Dr. J. Amaladevi is running a private Nursing Home at Dindigul by the name "ANNAI PERINBAM HOSPITAL".
(c) That Dr. J. Amaladevi is running an old age Home by name "MANITHAM".
(d) That Dr. J. Amaladevi is taking "LAPROSCOPY INSTRUMENT FROM GOVERNMENT HOSPITAL TO HER PRIVATE HOSPITAL".
According to the learned counsel, as regards the allegations that she owns a house at Nehruji Nagar and that she runs a private hospital at Pandian Nagar, Dindigul, they were found to be false and as regards the further complaint that she purchased a Maruthi car without obtaining prior permission, she has already been punished with stoppage of increment and, therefore, she cannot be punished again. The various other details regarding the complaints received from the National Human Rights Commission, New Delhi, are without any basis and in any way she has no notice of the same. One complaint which is said to be made by a Peace Trust Committee member was found to be patently false, since a letter has been received stating that no such member belongs to the Peace Trust Committee. According to the learned counsel all the grounds that are raised by counter have been met in the reply and there is absolutely no ground to show that there were any justifiable reasons for transferring her at the fag end of her period. The learned counsel for the petitioner also denied the allegation that she has managed to be posted only in two districts, viz., Dindigul and Trichy. According to the learned counsel, the petitioner has rendered an exemplary service and has also received several Certificates to show that she has served faithfully and well.
4. The learned counsel relied on a judgment of the Supreme Court (B. Varadha Rao v. State of Karnataka), wherein the Supreme Court has held that while transfer is an incident of service, if the power of transfer is abused, exercise of power is vitiated. The learned counsel also relied on a decision of the Supreme Court in Arvind Dattatraya Dhande v. State of Maharashtra , where the Excise Inspector whose work was otherwise highly commended was transferred at the instance of country liquor vendors, who complained against him. The transfer order was quashed and strictures were passed against the action of the State Government. The decision reported in 1982 (1) LLJ 349 (D. Ramaswami v. State of Tamil Nadu) was referred to, in which the employee was given promotion just prior to his compulsory retirement and, therefore, the Supreme Court held that in the face of the promotion of the appellant just a few months earlier and nothing even mildly suggestive of ineptitude or inefficiency thereafter, it is impossible to sustain the order of the Government retiring the appellant from service. Placing reliance on this decision, the learned counsel submitted that in the instant case also the petitioner was promoted a few months prior to the order of transfer and, therefore, this judgment will squarely apply. The learned counsel also relied on the order passed in W.P.No.24056 of 2004, dated 28.9.2004, where this Court quashed the order of transfer in view of the fact that the petitioner's wife was working in the same place and his mother was sick. This order was confirmed by the division Bench. For all these reasons the learned counsel prayed that the order of transfer should be quashed.
5. On the other hand, the learned Additional Government Pleader appearing for the respondents would submit that this is not an ordinary case and in any event, no mala fides have been urged. According to the learned Government Pleader this was a case where the authorities had no other option except to transfer the petitioner. He submitted that though the petitioner might say that she had been transferred 11 times in one year, she did not join duty pursuant to the transfer and, therefore, it cannot be said that she had been transferred several times. According to the learned Government Pleader, several deaths have occurred and complaints are numerous against the petitioner; the petitioner runs a private hospital close to the Government hospital in Dindigul and there are many irregularities which have been brought to the knowledge of the respondents and it is in the interest of administration that she had been transferred. The learned Additional Government Pleader also produced the records relating to the petitioner. According to the counter, earlier an enquiry was conducted by the Director of Medical and Rural Health Services, and based on the Enquiry Officer's Report, necessary disciplinary action was initiated against the petitioner and she was awarded the punishment of stoppage of increment without cumulative effect for the proven lapses and she was also transferred to the Government Hospital, Usilampatti. Subsequently, she was promoted as Senior Civil Surgeon. But, at this time, complaints were received from the National Human Rights Commission, New Delhi. The petitioner was warned and transferred to the Government Primary Health Centre at Pudur Uthamanur in Trichy District. Thereafter, on the request made by the petitioner, she was transferred from Trichy and posted as Deputy Director of Medical and Rural Health Services and Family Welfare, District Family Welfare Bureau in Dindigul. Again several complaints had been received against her. In particular, the following complaints were made against her:-
1) she had acquired properties without prior permission of the Government;
2) she was running a private nursing home;
3) she was running an old age home; and
4) she was taking special instruments from the Government Hospital to her private hospital. It is in these circumstances and since the Government Headquarters Hospital at Dindigul itself suffered a loss of reputation because of the petitioner, the petitioner was transferred to Chennai. It is specifically stated that the transfer was only on administrative grounds and there is no mala fide. The records show that when she was Civil Assistant Surgeon, at Government Headquarters Hospital, Dindigul, she was promoted as Senior Civil Assistant Surgeon with effect from 01.2.1999. On 24.3.1999 she was transferred to Government Hospital, Periakulam. The petitioner took 20 days' medical leave from 25.3.1999, then again 30 days' medical leave from 14.4.1999 and she did not appear for medical examination on 20.4.1999. She again took 30 days' leave from 14.5.1999; 20 days from 13.6.1999 and again from 03.7.1999 to 25.1.2000, she was absent from duty without sanction of leave. In the meantime, she had filed an application before the State Administrative Tribunal and the Tribunal quashed the order of transfer and she came back to Dindigul on 26.1.2000. Therefore, the first three transfers that are mentioned by the petitioner remained only a transfer on paper. She did not move from Dindigul. Thereafter, she was transferred to Periakulam on 01.4.2000. On 27.6.2001, an order appears to have been passed regarding her unauthorized absence from 25.3.1999 to 21.1.2000 and she was punished with stoppage of increment for six months without cumulative effect. In the counter, it is specifically stated that the petitioner seldom complied with the orders of transfer. The transfer on 13.7.2002 was a request transfer. She was transferred from Pudur Uthamanur to Dindigul. Then on the basis of complaints, the petitioner was transferred to Primary Health Centre at Thadicombu on 15.2.2002. But she did not join duty at Thadicombu. Thereafter it was modified and she was posted to Government Primary Health Centre, Erode. She did not join duty in that station also. On the contrary, the petitioner continued to act as the Deputy Director of Medical and Rural Health Services and Family Welfare, Dindigul continuously, till she was promoted as the Joint Director of Health Services, Dindigul on 23.8.2003. Therefore, the petitioner managed to frustrate all the efforts of the respondent to transfer her. She could not be easily moved out of Dindigul. The petitioner belongs to the State Service category and transfer is an incident of service. There were many complaints against her. The respondents decided that in lieu of suspension, the officer may be transferred. The present transfer is purely in the interest of public as well as on administrative grounds. The transfer guidelines dated 05.8.1998 provide for transfer in public interest in lieu of suspension. Therefore, the petitioner has no right to insist that the three year rule should be followed.
6. As regards the decision relied on by the learned counsel in D. Ramaswami v. State of Tamil Nadu (1986 (2) L.L.J.349), the Supreme Court quashed the order of compulsory retirement on the ground that since the appellant was promoted a few months earlier, the said order cannot be sustained. The Supreme Court refused to accept the contention on behalf of the State of Tamil Nadu that the Government was entitled to take into consideration the entire history of the appellant including that part of it which was prior to his promotion. The Supreme Court observed in para 6 as follows:-
"6. .... We do not say that the previous history of a Government servant should be completely ignored, once he is promoted. Sometimes, past events may help to assess present conduct. But when there is nothing in the present conduct casting any doubt on the wisdom of the promotion, we see no justification for needless digging into the past".
In the aforesaid case, the Supreme Court found that there was nothing in the present conduct casting any doubt on the wisdom of the promotion. Whereas, in this case, enough materials have been produced by the respondents to justify the respondents' taking into account the cumulative effect of the petitioner's service. Even (B. Varadha Rao v. State of Karnataka) cannot help the petitioner. In this case, the Supreme Court has observed in para 4 as follows :-
".... transfer is always understood and construed as an incident of service. The words 'or other conditions of service' in juxtaposition to the preceding words 'denies or varies to his disadvantage his pay, allowances, pension' in R.19(1)(a) must be construed ejusdem generis. Any alteration in the conditions of service must result in prejudice to the Government servant and some disadvantage touching his pay, allowances, pension, seniority, promotion, leave, etc. It is well understood that transfer of a Government servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of service and therefore does not result in any alteration of any of the conditions of service to his disadvantage. That a Government servant is liable to be transferred to a similar post in the same cadre is a normal feature and incident of Government service and no Government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified, non-transferable post. .."
However, the Supreme Court held that the power of transfer cannot be abused and referred to E.P. Royappa v. State of Tamil Nadu , wherein it was held that frequent transfers without sufficient reasons to justify such transfers cannot but be held as mala fide.
7. In the present case, every time the petitioner had been transferred because of complaints against her or unavoidable circumstances, such as, communal clashes, which necessitated the transfer. Every time the petitioner is transferred, she had gone on medical leave. This is borne out by records. So here is a person who has never thought it necessary to obey the orders of transfer and has, on the other hand, stuck like a leech in the same place from 1999. We can only shake our head in dismay, to hear the petitioner accuse the respondents that it is false to state that she had already worked in and around Dindigul. The case of the respondents that from 1999 the petitioner has managed to be in and around Dindigul is clearly borne out by records. (Arvind Dattatraya Dhande v. State of Maharashtra) also cannot apply to this case. In that case, an honest officer was victimized. In this case, we not only have the complaints said to be made by the public, but also other allegations regarding unauthorized private practice, unauthorized absence on transfer, unauthorized purchase of immovable property and cases of medical negligence and violation of Medical Code. The records also show that on the basis of a recent complaint, the petitioner had been called for an enquiry. According to the respondents, Rule 646 of the Medical Code provides that "no medical officer shall maintain or have financial interest in a private nursing home, hospital, or similar establishment".
8. The Supreme Court in the decision (Union of India v. S.L. Abbas) held in paras 6 and 7 as follows:-
"6. An order of transfer is an incident of Government Service. ..... It is not the case of the respondent that the order of his transfer is vitiated by mala fides on the part of the authority making the order, - though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a setback some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force.
7. 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. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right.
9. In (Gujarat Electricity Board v. Atmaram Sungomal Poshani), it was held that no government servant has no right to be absent from duty without sanction of leave, merely on account of pendency of representation against the order of transfer and that he has no justification to evade or avoid the transfer order and that if he fails to comply with the transfer order, he exposes himself to disciplinary action. Similarly, in (State of U.P. v. Ashok Kumar Saxena), the Supreme Court held in para 7 as follows:-
"7. It is that order which is in challenge before us in these three matters. We are not concerned here with the correctness of the order of transfer passed by the State Government or the validity of the contentions put forward by respondents 1 and 2 against the same in the High Court. The parameters of the powers of a Court under Article 226 vis-a-vis an order of transfer are well settled. In N.K. Singh v. Union of India this Court held that interference by judicial review is justified only in cases of mala fides or infraction of any professed norms or principles and where career prospects remain unaffected and no detriment is caused to be government employee concerned, challenge to the transfer must be eschewed. Reiterating the said proposition in Abani Kanta Ray v. State of Orissa (1995 Supp (4) SCC 169) the Court added that transfer being an incidence of service is not to be interfered with by the courts unless it is shown clearly arbitrary."
10. The narration of events would clearly establish that the respondents cannot be said to have exercised their power arbitrarily or mala fide. The exercise of the power of transfer has been done in the interest of administration. The petitioner has not made out a case to show that it is so shocking or vindictive or mala fide as to warrant interference. Further, the above decisions are in favour of the respondents.
11. The writ petition is dismissed. Consequently, the connected miscellaneous petitions are also dismissed. No costs.