Madras High Court
Union Of India vs R.Ilanthirayan on 6 August, 2013
Author: R.Banumathi
Bench: R.Banumathi, T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 6.08.2013
CORAM:
THE HON'BLE MRS.JUSTICE R.BANUMATHI
AND
THE HON'BLE MR.JUSTICE T.S.SIVAGNANAM
W.P.NO.26026 OF 2012
1. Union of India, represented
by the Government of Puducherry
through the Secretary to
Government (Health),
Chief Secretariat, Puducherry
2.The Director,
Health and Family Welfare Department,
Puducherry. .... Petitioners
Vs.
1.R.Ilanthirayan, working as
Bacteriologist,
Department of Food and Drugs Testing,
Puducherry,
2.R.Radhakrishnan,
Bacteriologist,
Government General Hospital,
Puducherry
3.The Registrar,
Central Administrative Tribunal,
Madras Bench, High Court Buildings,
Chennai 600 104. .... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India seeking for the relief of issuance of writ of certiorari to call for the records relating to the Order dated 14.12.2011 made in O.A.No.792 of 2011 and the Order dated 14.06.2012 made in R.A.No.23 of 2012 in O.A.No.792 of 2011 on the file of the third respondent herein and to quash the same.
For Petitioner : Mr.Mani Sundar Gopal,
Govt.Pleader (Pondicherry)
For Respondents : Mr.V.Ajaykumar for R.1
ORDER
R.BANUMATHI,J.
Being aggrieved by the orders dated 14.12.2011 made in O.A.No.792 of 2011 on the file of Central Administrative Tribunal, Madras Bench quashing the order of the transfer of the 1st respondent to the Health Department i.e., IGGGH& PGI, Puducherry from the Department of Food & Drugs Testing, vide No.460/CS/H6/Health/2011 dated 14.6.2011 and the and also the Order of the Tribunal dated 14.06.2012 made in R.A.No.23 of 2012 in O.A.No.792 of 2011, Union Territory of Puducherry has preferred this writ petition.
2. It is the case of the first respondent that was appointed in the Public Health Laboratory under the Health Department, Government of Puducherry with effect from 3.4.1991. Vide G.O.Ms.No.08, Health Secretariat, dated 28.2.2011 the Government of Puducherry issued an order bifurcating the Food and Drugs Administration and Public Health Laboratory (Food and Drugs Analysis Unit) from the Directorate of Health and Family Welfare Department and set up Food and Drugs Testing as a separate Department. As such the first respondent was brought under the Department of Food and Drugs Testing under the direct control of the Health Secretariat and by virtue of his vast experience and qualification he has been retained all along in the Food and Drugs Testing Division. The Government of Puducherry has issued an order on 23.3.2011 appointing the 1st respondent to function as Public Analyst in the Andaman and Nicobar Administration Secretariat. The impugned order of transfer had been issued transferring the first respondent to the Health Department and posting him to the laboratory attached to a Hospital without obtaining his willingness is most arbitrary, discriminatory, illegal and against law. The first respondent is the senior most person in the present department of Food and Drug Testing and by transferring him to Health Department, he will be losing his status as senior most Bacteriologist and the status of functioning as Public Analyst. The impugned transfer order has been issued with malafide intention because earlier the first respondent filed O.A. for getting the benefit of ACP which was allowed by the Tribunal and the W.P filed against the order was dismissed by the High Court and since then the first respondent has been discriminated in all aspects and with ulterior motive to give undue advantage to the second respondent, who is junior most. Contending that the impugned transfer order is illegal and is liable to be quashed, 1st respondent filed O.A.No.792 of 2011.
3. According to the petitioners, the Government of Puducherry decided to set up a full fledged and combined Food and Drugs Laboratory in the Government for Food and Drugs Administration and Public health Laboratory were de-linked from the Directorate of Health and Family Welfare Services and declared as separate Department in the name of Department of Drugs Control, Department of Food Safety and Department of Food and Drugs Testing under the administrative control of Health Secretariat, with effect from the financial year 2011-2012 vide G.O.Ms.No.08 dated 28.2.2011 of the Health Secretariat, Puducherry. Though the Departments are separated, they are under the control of the Health Secretariat. The Director (Health) is the Cadre Control Authority to the common category posts like Bio-Chemist, Bacteriologist, Technical Assistant Senior Lab Technician, Senior Scientific Assistant, Lab Attendant, etc., which are existing in all the institutions of the Health Department and are belonging to transferable categories from one to another institution/office/ department as per the requirement and transfer policy in the public interest. As per the report/ recommendation of the Quality Council of India, the Bacteriologist, who is qualified in M.Sc., Microbiology should be posted in the Public Health Lab (Now Department of Food and Drugs Testing). The first respondent possesses M.Sc Degree in integrated Biology with Bio-Chemist as the optional subject. Hence, due to necessity and for obtaining accreditation, the first respondent was transferred to Government General Hospital, Puducherry (IGGGH&PGI) and the second respondent, who possesses the required M.Sc., Microbiology was transferred to Department of Food and Drugs testing vice versa and this is one of the arrangements as contemplated under para 5(vi) of the G.O. The seniority of first respondent among the three Bacteriologists is maintained and there is no monetary loss and he will not lose his career prospects. There is no bar for the 1st respondent to act as Public Analyst in respect of Andaman & Nicobar Administration, though he has been transferred to Government General Hospital, Puducherry.
4. Upon consideration of rival contentions, the Tribunal held that consequence of issuance of G.O.Ms.No.08 of 2011 dated 28.2.2011, willingness was sought for from the serving Senior Laboratory Technicians/Technical Assistants, Laboratory, and serving in various health institutions under the control of Directorate of Food and Drugs Testing, Puducherry. The Tribunal held that no such willingness was sought for from the first respondent before such transfer from one Department to another Department and the petitioners were not justified in transferring the first respondent from one Department to another Department. Observing that normally Tribunal and Court shall not interfere with the order of transfer unless prima facie malafide or bias is proved or that the same is in violation of the statutory rules, the Tribunal held that in the instant case, authorities have not properly acted upon before issuing the transfer order from one Department to another Department and on those findings Tribunal quashed the transfer order.
5. After the Tribunal passed the order, Government filed review petition before the Tribunal and by order dated 14.6.2012 the said Review Petition came to be dismissed. Challenging the order of Tribunal dated 14.12.2011 and also the order dated 14.6.2012 dismissing the review petition, Union Territory of Puducherry has preferred this writ petition.
6. Mr.Mani Sundaragopal, learned Government Pleader (Pondicherry) contended that in G.O.Ms.No.08 dated 28.2.2011 de-linking Food and Drugs Administration and Public Health Laboratory from the Directorate of Health and Family Welfare Services, it has been specifically stipulated that the re-arrangement/transfer of Ministerial/ technical staff with the various posts will be made in the Health Department and the Tribunal ought to have seen that the order of transfer is only in furtherance of the said power. It is submitted that the Tribunal did not properly appreciate the case of the Department that as per the report/recommendation of the Quality Council of India, the Bacteriologist, who is qualified in M.Sc Microbiology should be posted in the Public Health Lab and the 1st respondent possesses only M.Sc Degree in Integrated Biology with Bio-Chemist as the optional subject and as recommended by the Quality Council of India for obtaining accreditation, the 1st respondent was transferred to Government General Hospital, Puducherry and the 2nd respondent, who possessed the required M.Sc Micro Biology, was transferred to the Department of Food and Drugs Testing and vice versa. Therefore, the question of seeking willingness of the 1st respondent does not arise. The learned counsel mainly submitted that by the transfer, the 1st respondent is not losing his seniority or career prospects.
7. We have heard Mr.V.Ajay kumar, learned counsel appearing for first respondent. The learned counsel submitted that based on materials, Tribunal rightly held that the authorities have not properly acted in issuing the transfer and the order does not suffer from any infirmity.
8. The learned counsel submitted that transfer, being incidence of service, normally the Court will not interfere with the orders of transfer unless shown to be malafide or biased or in clear violation of the rules. As held by the Supreme Court in N.K.Singh Vs. Union of India, ((1994) 6 SCC 98), and other decisions, the realistic approach is to leave it to the wisdom of hierarchical superiors to make the decision. Unless the decision is vitiated by malice or infraction of any rules governing the transfer, the Court shall not normally interfere with the order of transfer.
9. The 1st respondent was initially appointed as Bacteriologist in the Government Hospital for chest diseases, Health Department of Puducherry with effect from 3.4.1991 through Union Public Service Commission. Subsequently, he was transferred to the erstwhile Public Health Laboratory, (now Department of Food and Drugs Testing). By the proceedings dated 23.3.2011, the services of the 1st respondent were made available to Andaman and Nicobar Health Department to function as Public Analyst on fixed days, subject to the terms and conditions indicated thereon. While so, by Order dated 14.6.2011, the 1st respondent was transferred from Food and Drugs Testing to Health Department. Vide G.O.Ms.No.08 dated 28.2.2011, Government of Puducherry de-linked Food and Drugs Administration and Public Health Laboratory (Food and Drugs Analysis Unit) from the Directorate of Health and Family Welfare Services and declared the same as separate Departments in the names of (i) Department of Drugs Control; (ii) Department of Food safety and (iii) Department of Food and Drugs Testing (Public Health Laboratory). As per the said G.O, power to re-arrange or transfer of Ministerial/Technical staff with the various posts in the newly formed Departments has been vested with the Health Department.
10. According to the petitioners, the transfer of the 1st respondent is (i) as per the recommendation of the Quality Council of India that Bacteriologist, who is qualified in M.Sc Microbiology, should be posted in the Public Health Lab (now Department of Foods and Drugs Testing), whereas the 1st respondent possessed only M.Sc Degree in Integrated Biology with Bio-chemist as optional subject and (ii) consequent of re-arrangement of the technical staff with the various posts in the newly formed Departments.
11. Insofar as the first ground, learned counsel for petitioners has drawn our attention to the Gap study of the team of Quality Council of India. It is the case of the petitioners that the Quality Council of India while conducting Gap study in the Public Health Department (now Department of Food and Drugs Testing) at Puducherry had submitted his report/recommendation that only the persons qualified in M.Sc Microbiology should be posted in the Public Health Lab (now Department of Food and Drugs testing), whereas the 1st respondent possessed only M.Sc Degree in Integrated Biology with Bio-chemist as the optional subject. According to the writ petitioners, for obtaining accreditation and in the administrative exigencies, the 1st respondent was transferred to the Government General Hospital and the 2nd respondent, who possesses the required M.Sc Microbiology, was transferred to the Department of Food and Drugs Testing and vice versa.
12. We have perused the report-FSSAI Lab Project and Quality Council of India. The relevant portion of report reads as under:
"Training -
Chemical Section: Only five chemists have attended an external training program in analytical work, at CFTRI, and this was not an exhaustive module. Personnel have not been adequately exposed to the techniques using the sophisticated equipments like AAS, GC, HPLC et. As a result no residue analysis work is undertaken by them.
Microbiology section: The section in-charge of microbiology is having an academic qualification in Integrated Biology and no training in Food Microbiology and his Deputy is a Botany graduate. An urgent need is perceived for training in food Microbiology.
Recommended actions An exhaustive 'Hands-on' training program on modern instrumental methods at an out side facility like CFTRI is very much needed for all personnel for acquiring the necessary skills and competence."
It is clear from the above that the Quality Council of India expressed the need for training in Food Microbiology . The Quality Council of India only recommended actions for acquiring the necessary skills and competence.
13. In this regard, the learned counsel for the 1st respondent has drawn our attention to Specific Guidelines for Biological Testing Laboratories issued by National Accreditation Board for Testing and Calibration Laboratories. As per the said Guidelines, the staff in the accredited laboratories must be competent and experienced in the relevant technical area covered by their scope of accreditation. Insofar as Biological Testing laboratory, National Accreditation Board for Testing and Calibration Laboratories issued the following guidelines:
"... The minimum qualification for the technical staff in a biological testing laboratory shall be graduate or postgraduate in microbiology/food science/Pharmacology/ biotechnology/ biochemistry/ toxicology/veterinary science. Alternative qualifications in biological sciences may meet requirements where staff has relevant experience relating to the laboratory's scope of accreditation.
Staff should have a minimum of 1 year of work experience in similar area covered by the scope of accreditation as proven by demonstrated competence on records. Freshers can be put under training with adequate supervision."
14. As per the above said guidelines, alternative qualification in Biological Science may meet the requirements, what required is the staff with relevant experience relating to the similar area covered by the scope of accreditation. As pointed out earlier, the 1st respondent was transferred to the erstwhile Public Health Department, (now Department of Food and Drugs Testing) on 6.8.1999 and has been working since then. Therefore, as per the said guidelines, the 1st respondent has the relevant experience in similar area relating to the laboratories scope for accreditation. Therefore, the reason stated by the writ petitioners for transfer of the 1st respondent from Department of Food Drugs Testing to Public Health Department appears to be baseless.
15. Learned counsel for writ petitioners then submitted that as a result of the transfer the 1st respondent will not be losing his seniority and career prospects. In the counter filed by the 1st respondent, it is clearly stated that as per Recruitment Rules, Bacteriologist, Junior Scientific Officer and Manufacturing Chemist, who are working in the Public Health Laboratory, are entitled to get promotion to the post of Government Analyst. According to the first respondent, he is the senior most in the entire feeder categories, who is entitled to get promotion and that is the reason why he has been thrown out from the Public Health Laboratory under the pretext of Gap Study. By transferring him from the Foods and Drugs Testing to Public Health Department, the 1st respondent will be losing his career prospects of getting promotion to the post of Government analyst, whereas the second respondent, who is far junior to the 1st respondent, is brought into the Department as "Public Analyst" in the Department of Food and Drugs Testing creating promotion avenue to the 2nd respondent, who is far junior to the 1st respondent. Therefore, it cannot be contended that the career prospects of the 1st respondent are not affected by the impugned order of transfer.
16. As pointed out by the Tribunal, consequent upon bifurcation, willingness was sought for from the serving Senior Laboratory Technicians, Technical Assistants (Laboratory), who possess the Under Graduate/Post Graduate degree in various courses and serving in various health institutions under the control of Department of the Health and Family services, Puducherry for being posted in the Department of Food and Drugs Testing. But no such willingness was sought for from the 1st respondent before such transfer from one Department to another Department. Pointing out that the authorities have not properly acted before issuing impugned transfer order, the Tribunal rightly quashed the transfer order and the order does not suffer from any infirmity warranting interference by this Court.
17. In the result, the writ petition is dismissed. However, there is no order as to costs. Consequently, the connected miscellaneous petition is also dismissed.
Index:Yes (R.B.I.,J.) (T.S.S.,J.) Internet:Yes 6.08.2013 usk Copy to: 1. The Registrar, Central Administrative Tribunal, Madras Bench, High Court Buildings, Chennai 600 104. R.BANUMATHI,J. AND T.S.SIVAGNANAM,J. usk Order in W.P.26026 of 2012 6.08.2013