Central Administrative Tribunal - Jabalpur
Pretheesh Abraham vs M/O Health And Family Welfare on 16 November, 2021
1 OA No.200/546/2021
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/546/2021
Jabalpur, this Tuesday, the 16th day of November, 2021
HON'BLE MR. RAMESH SINGH THAKUR, JUDICIAL MEMBER
HON'BLE MS. NAINI JAYASEELAN, ADMINISTRATIVE MEMBER
Pretheesh Abraham, S/o Shri Abraham T.P., age about 41 years,
Occupation : Nursing Officer, Bhopal Memorial Hospital &
Research Centre, Bhopal - 462038, R/o House No. B-16, Elixer
Green Colony, New Jail Road, Karond, Bhopal Pin : 462038.
- Applicant
(By Advocate - Shri N.S. Ruprah)
Versus
1. Indian Council of Medical Research, V Ramalingswamy Bhawan, Ansari
Nagar, New Delhi Pin : 110001 through the Director General.
2. Assistant Director General (Administration) ICMR, Ansari Nagar, New Delhi
Pin : 110001.
3. Director, National Jalma Institute of Leprosy and Other Mycobacterial
Diseases, Agra (U.P.) Pin 282001.
4. Director, Bhopal Memorial Hospital & Research Centre, Raisen Bypass Road,
Bhopal Pin : 462038.
5. Nursing Superintendent, Bhopal Memorial Hospital & Research Centre,
Raisen Bypass Road, Bhopal : 462038.
6. Union of India through Secretary, Ministry of Health and Family Welfare,
Nirman Bhawan, New Delhi - 110011
- Respondents
(By Advocate - Shri Ashish Shroti)
(Date of reserving order :01.10.2021)
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2 OA No.200/546/2021
ORDER
By Ramesh Singh Thakur, JM.
This Original Application has been filed by the applicant against the order dated 11.08.2021 (Annexure A-1), whereby the applicant has been transferred from Bhopal Memorial Hospital and Research Centre (BMHRC), Bhopal to National JALMA Institute for Leprosy and Other Mycobacterial Diseases, Agra. The applicant is also challenging his relieving order dated 14.08.2021 (Annexure A-2).
2. The applicant has sought for the following reliefs:
"8.1 To quash the impugned orders Annexure A-1 dated 11.08.2021 & Annexure A-2 dated 14.08.2021;
8.2 To order the Respondents to continue the Applicant at BMHRC Bhopal;
8.3 To order the Respondent to pay Rs.1,00,000/- towards litigation costs;
8.4 To pass such other orders as it may deem fit under the circumstances of the case."
3. From the pleadings, the case of the applicant is that he was appointed as Staff Nurse (Grade-III) vide order dated 31.08.2009 (Annexure A-3) in the BMHRC. The BMHRC was under the control of Government of India, Ministry of Health and Family Welfare, Department of Health Research (DHR). Subsequently, the Page 2 of 12 3 OA No.200/546/2021 administrative control of BMHRC was transferred to Indian Council for Medical Research (ICMR) vide order dated 29.11.2019 (Annexure A-6). The applicant has given the option dated 28.02.2021 (Annexure A-7) that he wants to continue in Government of India and to serve in BMHRC under DHR. However, despite the option given by the applicant, the respondents have transferred him to JALMA, Agra, which is under ICMR.
4. The applicant has challenged the transfer order on the grounds that Annexure A-1 and A-2 orders are without the authority of law because the appointment order (Annexure A-3) clearly states that the applicant has been appointed in BMHRC and his post is not transferable. Secondly, Para IV of the order dated 29.11.2019 (Annexure A-6) provides for option either to continue to work under DHR or under ICMR and the applicant has opted to work under Government of India (DHR) vide option dated 28.02.2021 (Annexure A-7). Further, the decision to transfer the administrative control of BMHRC to ICMR is under challenge before the Hon'ble High Court of Madhya Pradesh in W.P. No.15658/2012 and the applicant is also an intervener in the said W.P. The applicant has also submitted that he is the President of the Nurses Association. The applicant's wife is a Page 3 of 12 4 OA No.200/546/2021 patient of diabetes type 2, gastritis and fibromyalgia and the parents of the applicant are also old age and require regular medical treatment.
5. The respondents have filed their reply. The respondents have submitted that after the Bhopal gas leak disaster, the BMHRC was established for providing medical treatment and rehabilitation to the gas victims. The Trust was established under the directions of the Hon'ble Apex Court in the year 1998, which started functioning from 2000 and was run by the Trust up to when the Chairman of the Trust, Justice A.M. Ahmadi resigned. The Union of India thereafter decided to take over the Hospital and run it through the Department of Biotechnology & Department of Atomic Energy, which took over the management of Hospital w.e.f. 10.07.2010. Later on, the management of the Hospital was given to ICMR w.e.f. 12.01.2012, which functions under the DHR and thereafter the functioning of the Hospital was taken over by the DHR in October, 2015. Subsequently, once again the management of the Hospital is transferred to ICMR vide order dated 29.11.2019 (Annexure A-6).
Page 4 of 12 5 OA No.200/546/2021 5.1 It has been further submitted by the respondents that the applicant was working as Nursing Officer at BMHRC, which is now a unit of ICMR. Further, most of the ICMR institutes have been engaged in activities towards management of Covid-19 pandemic by engaging huge manpower temporarily since April, 2020 onwards. Therefore, it was necessary to transfer/redeploy trained regular staff in those Institutes in order to fill up the gap based on functional requirement and public interest and there is no change in status of the applicant nor in his service conditions. The BMHRC as also the JALMA, Agra are the units of ICMR and, therefore, there is no legal impediment in transferring the applicant and the applicant has already been relieved on 14.08.2021. It has also been submitted by the respondents that the transfer order can only be challenged on limited grounds of competency and malafide, whereas none of the aforesaid grounds are existing in the instant case. The applicant has opted to serve in BMHRC under DHR and not under ICMR and this option is not in consonance with the order dated 29.11.2019 (Annexure A-6) as the applicant can either serve BMHRC under ICMR or he can opt to service Government of India. Regarding the illness of applicant's wife, the respondents have stated in their reply that the illness of Page 5 of 12 6 OA No.200/546/2021 applicant's wife is not such that she is required to be retained at Bhopal only and the treatment of her illness is available at almost everywhere in the Country. The impugned order of transfer is based on administrative exigency and as many as six persons have been transferred from BMHRC to meet out the administrative exigency. Further, the applicant cannot claim immunity from transfer being office bearer of Association as there is no immunity provided in law.
6. The applicant has filed rejoinder to the reply filed by the respondents, wherein he has reiterated the averments made in the Original Application. In addition, the applicant has filed copy of the option dated 25.02.2020 (Annexure A-14) given by Mr. Martin T. Devassia. It has been submitted by the applicant that Mr. Martin T. Devassia had also stated in his option form that he opts to continue in Government of India and to serve in BMHRC under DHR and not under ICMR and the respondents have refused to transfer him to any Institute of ICMR. But, in the case of applicant, the applicant has been transferred to a Hospital, which is under ICMR.
7. We have heard the learned counsel for the parties and also perused the documents and pleadings available on record. Page 6 of 12 7 OA No.200/546/2021
8. It is seen from the record that the applicant was appointed as Staff Nurse (Grade-III) in BMHRC in the year 2009 and at the time of his appointment, the Hospital was run by the Trust. Thereafter, the Union of India had taken over the Hospital and it was run through the Department of Biotechnology and Department of Atomic Energy and now the management of the Hospital is under ICMR (Department of Health Research) Ministry of Health and Family Welfare, Government of India and, therefore, the BMHRC is admittedly a unit of ICMR. The terms and conditions of applicant's appointment order dated 31.08.2009 (Annexure A-3) inter alia states:
APPOINTMENT With reference to your application and subsequent interview, we are pleased to offer you the post of Staff Nurse (Grade-III) in Bhopal Memorial & Research Centre, Bhopal on the following terms and conditions.
1. Your services will be governed by rules and regulations of the BMHRC currently in force and as amended from time to time.
Further, you are expected to familiarize yourself with the details of rules and regulations as applicable to you from time to time. Your duties and responsibilites shall broadly comprise of :
(a) Planning, implementing & evaluating patient care activities.
(b) Observation and Reporting.Page 7 of 12 8 OA No.200/546/2021
(c) Assisting the physician and carrying out therepeutic procedures.
(d) Practice of economy.
(e) Any other duty that may be assigned to you.
xxx xxx xxx
7. PLACE/NATURE OF POSTING : Your place of first posting will be at BMHRC, Main Hospital, Karond, Bhopal.
However, you are liable to be posted in any Department or Out Reach Health Centre (Mini Unit) of BMHRC wherever your services are required. Upon such posting the rules and regulations of service applicable to such assignment will becom e applicable to you. You will be required to perform shift duties, emergency call duties and any other duties assigned to you subject to exigencies of services."
(emphasis supplied)
9. The Government of India, Ministry of Health & Family Welfare (Department of Health Research) vide its order dated 29.11.2019 (Annexure A-6) had decided to transfer the administrative control of BMHRC from DHR to ICMR and, accordingly, options were called amongst the employees of BMHRC either to continue in the Government of India or to work in BMHRC under ICMR. The order also states that there shall be no change in the service conditions of the employees of BMHRC. The applicant in his option dated 28.02.2020 (Annexure A-7) had stated that, "I opt to continue in Govt. of India and want to continue to serve in Bhopal Memorial Hospital & Page 8 of 12 9 OA No.200/546/2021 Research Centre (BMHRC) under Department of Health Research (DHR), Govt. of India and not under ICMR." However, since the administrative control of BMHRC has been transferred from DHR to ICMR, no such option was available to the applicant to continue in BMHRC under DHR and, therefore, the option given by the applicant was not in accordance with the orders issued vide order dated 29.11.2019 (Annexure A-6).
10. It has been argued by learned counsel for the applicant that there was no occasion for the respondents to transfer the applicant especially when the order dated 29.11.2019 (Annexure A-6), whereby the administrative control of BMHRC has been transferred from DHR to ICMR is under challenged before the Hon'ble High Court of Madhya Pradesh in Writ Petition (Civil) No.15658 of 2012 in which the applicant is also a party. Learned counsel for the applicant also argued that in a similar circumstances, i.e. in Original Application No.200/849/2014 (Dr. Puneet Gandhi vs. Union of India & others), this Tribunal has allowed the Original Application vide order dated 17.04.2015 by quashing the transfer order of the applicant therein. Learned counsel for the applicant further argued that the impugned transfer order suffers from malice in law as the same has been passed Page 9 of 12 10 OA No.200/546/2021 in lieu of punishment. He has placed reliance on a judgment of Hon'ble Apex Court in the case of Somesh Tiwari vs. Union of India and others, (2009) 2 SCC 592.
11. On the other hand, learned counsel for the respondents argued that the Writ Petition (Civil) No.15658 of 2012 was initially filed for grant of MACP and later on, the decision to transfer the administrative control of BMHRC from DHR to ICMR has been challenged. The applicant in the aforesaid Writ Petition has moved an intervention application and the same is still pending consideration before the Hon'ble High Court.
12. Regarding the decision to transfer the administrative control of BMHRC to ICMR, the same is a policy decision, which is not under challenged in the present Original Application. The issue in hand is regarding transfer of the applicant from one unit of ICMR to another and since both the units are under the administrative control of ICMR, it is for the ICMR to decide where a person is to be posted subject to administrative need. In the case of Dr. Puneet Gandhi (supra), this Tribunal had interfered with the transfer order as there were no documents to show that the BMHRC is directly run by ICMR. Page 10 of 12 11 OA No.200/546/2021 However, in the instant case, the order dated 29.11.2019 (Annexure A-
6) itself makes it clear that the administrative control of BMHRC has been transferred to ICMR. It is also not in dispute that the Institute at Agra, where the applicant has been transferred is also under ICMR. Thus, the ICMR is well within its right to transfer an employee working under its unit. So far as the option given by one Mr. Martin T. Devassia, Nursing Officer is concerned, the respondents have categorically stated in their reply that he had requested for his transfer to Kerala on personal grounds, which cannot be compared with the transfer order issued to the applicant in public interest.
13. It is a settled law that transfer of a government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. In the matters of Union of India vs. S.L. Abbas, (1993) 4 SCC 357 the Hon'ble Supreme Court has specifically held that who should be transferred where, is a matter for the appropriate authority to decide. In the matters of State of M.P. Vs. S.S.Kourav, (1995) 3 SCC 270 the Hon'ble Supreme Court has held that the wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by Page 11 of 12 12 OA No.200/546/2021 transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by malafides or by extraneous consideration without any factual background or foundation. In the matters of National Hydroelectric Power Corpn. Ltd. Vs. Shri Bhagwan, (2001) 8 SCC 574, the Hon'ble Supreme Court has held that unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals cannot interfere with such orders as a matter of routine, as though they are the appellate authorities substituting their own decision for that of the management, as against such orders passed in the interest of administrative exigencies of the service concerned".
14. In view of the aforesaid, we do not find any reason to interfere with the impugned transfer order dated 11.08.2021 (Annexure A-1) and relieving order dated 14.08.2021 (Annexure A-2). Accordingly, the Original Application is dismissed being devoid of merits. No order as to costs.
(Naini Jayaseelan) (Ramesh Singh Thakur)
Administrative Member Judicial Member
am/-
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