Central Administrative Tribunal - Jaipur
Shyam Narayan Sharma vs Employees State Insurance Corporation on 28 July, 2023
1
OA No. 258/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
...
ORIGINAL APPLICATION No. 258/2021
Order reserved on : 20.07.2023
Date of order: 28.07.2023
CORAM:
HON'BLE MR. DINESH SHARMA, MEMBER (A)
Shyam Narayan Sharma son of Shri Satya Narayan,
aged about 59 years, resident of House No. 1513
Chandpole Bazar Bagaroo Walano Ka Rasta, Jaipur at
presently working as Chief Medical Officer (Ayurved)
in ESIC Model Hospital, Jaipur. (Group-A) 9414454521
...Applicant
(By Adv: Shri Banwari Sharma)
Versus
1. The Union of India through the Secretary,
Ministry of Department of Labour &
Employment, Government of India, Panchdeep
Bhawan, Comrade Indrajeet Gupta Marg, New
Delhi-110002.
2. The Director General, Department of Employees
State Insurance Corporation (E.S.I.C.),
Panchdeep Bhawan CIG Marg, New Delhi-
110002.
3. The Dy. Director (Medical Administration),
Group-4, E.S.I.C., Panchdeep Bhawan CIG
Marg, New Delhi-110002.
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OA No. 258/2021
4. The Medical Superintendent, Employee State
Insurance Corporation, Model Hospital, Jaipur
5. Dr. Deepak Kumar Sharma, Senior Medical
Officer (Ayurved) ESIC Model Hospital, Jaipur
through Medical Superintendent ESIC Model
Hospital, Jaipur.
...Respondents.
(By Adv: Shri T.P. Sharma for respondents No. 1 to 4
Shri Kinshuk Jain for respondents No. 5.)
ORDER
In this OA, the applicant has prayed for the following reliefs:
"i) by an appropriate order or direction, the impugned order dated 26.8.2021 (Annex.A/1) may kindly be quashed and set aside.
ii) Award costs of this Original
Application; and
ii) Grant such other and further relief/s, as may be deemed just and expedient in the facts and circumstances of the case so as to give full relief to the Applicants."
2. The case of the applicant is mainly based on his claim that he, at the time of his absorption (from a local institution, with the respondent Corporation- ESIC), had, as per the agreed terms of a tri-partite agreement, opted for "institutional seniority" (and not 3 OA No. 258/2021 all-India seniority) with the ESIC. Since this amounted to his foregoing benefits that go with the all-India seniority, he cannot be transferred out of the institution where he was posted at the time of his absorption. This matter has already been decided in this Tribunal's decision dated 04.03.2021 in O.A. No.763/2019. (Smt. Sylvia Saroj Vs. Union of India & Ors). The applicant has claimed that the person who has been posted in his place is relatively Junior. A transfer of the applicant in his place, therefore amounts to a kind of reversion. The applicant also claimed to be on the verge of retirement. An interim relief, by orders dated 31.08.2023, was granted to the applicant, by way of staying the transfer orders.
3. Replies have been filed by respondent No. 1 to 4 (official respondents) and respondent No. 5, (Private respondent, who has been posted in place of the applicant). In these replies the respondents have denied the claims made by the applicant. Transfer is a necessary incident in any employee's life. There are various decisions of the Hon'ble Apex Court where any interference in matters of transfers and postings is seriously discouraged unless vitiated by proven mala 4 OA No. 258/2021 fides/arbitrariness. It is stated that by a decision dated29.05.2018, the Board of the ESIC has decided, in the public interest, to keep all the medical officers transferrable anywhere amongst various hospitals/institutions under the ESIC. The replies also mention a decision of this Tribunal, dated23.07.2021(in O.A. No. 345/2014 in case of Dr. Anandi Mathur Vs. Union of India & Ors.) in which, the applicant was also a party. In that OA, he, along with others, has sought financial benefits available to those accepting all India seniority. Therefore, the applicant cannot now claim protection against transfer citing the decision in Sylvia Saroj's case (supra). It is also argued that the decision in Sylvia Saroj's case (supra) applied for para-medical staff and not to doctors above a certain level.
4. The applicant has filed rejoinders denying what is stated in the replies. It is argued that the applicant has never given a consent to accept all-India seniority. The decision of this Tribunal in Sylvia Saroj's case (supra) cannot be limited to only para-medical staff and it squarely applies on the facts of this case, too.
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5. The matter was final heard on 20.07.2023, after repeated requests from the respondents for vacating of orders of stay on transfer. Since transfer matters come within the ambit of the jurisdiction of a Single Bench, the matter was finally heard, with the consent of both the parties. Learned counsels of the parties strongly repeated the arguments mentioned in their respective pleadings.
6. Transfers are necessary incidents in a public servant's life. There can be no denying the argument that the Courts/Tribunals should be reluctant to intervene unless there is malice (personal orin law) or arbitrariness or any such other blatant illegality/play of extraneous forces. After going through the pleadings and hearing the arguments, it is clear that the decision of this matter rests squarely on a legal issue. It is: whether, as argued by the applicant, the decision of this Tribunal in Sylvia Saroj's case (supra) applies on the facts of this case, or, as countered by the respondents, whether the decision of this Tribunal in Anandi Mathur's case (supra), takes this matter out 6 OA No. 258/2021 of the ambit of the decision in Sylvia Saroj's case (supra).
7. It was decided in the Sylvia Saroj's case (supra) that there can be no unilateral withdrawal from an accepted tri-partite agreement and the respondents could not transfer those, who had opted for institutional seniority under that agreement. Thus, prima-facie, if the claim of the applicant that he had opted for institutional seniority, and has not gone back on it, is to be accepted, he cannot be transferred out of the institution where he has been working since his absorption with the ESIC.
8. However, if, as argued by the respondents, if the applicant's joining the OA No. 345/2018 (Dr. Anandi Mathur's case) to make a claim for Dynamic Assured Career Progression Scheme (DACP), (and his not filing any appeal against the decision in that case) can be taken as a tacit acceptance of all India seniority, there would be justification in the argument of the respondents to keep his case beyond the ambit of the verdict in Sylvia Saroj's case (supra). The applicant has argued that his joining the OA 345/2018, to claim 7 OA No. 258/2021 the DACP benefits, has nothing to do with the institutional seniority. He had opted for institutional seniority at the time of absorption and has not changed that fact till now. He has also argued that the Sylvia Saroj's case (supra) related to transfers while Dr. Anandi Mathur's case (supra) related to financial benefits. This distinction has been specifically mentioned in the latter case. The respondents have argued that the Sylvia Saroj's case related to para- medics and the latter case, in which the applicant himself was also a party, related to doctors. Hence it is the latter ruling which is more closely applicable to the facts of this case.
9. Having gone through our decisions in both these cases, I have no hesitation in concluding that there is no contradiction in decisions in both these cases. As decided in Sylvia Saroj's case, there can be no unilateral change by one party to an agreement. However, it is apparently illogical for a party to accept financial benefits which flow from all-India seniority (even without their explicitly accepting it) but not to accept any negative effects (such as a transfer) that go with the all-India seniority. The applicant has, by 8 OA No. 258/2021 joining the request for grant of financial benefits which come only when they are treated at par with their all India counter parts, has done an act which is contrary to the option given by him at the time of his absorption. Such cherry-picking (to use a term often described when a person chooses only good parts while eschewing bad things, while choosing something that comes in a package) is normally not allowed in any reasonable contract. O.A. No. 345/2018 (Anandi Mathur case, supra) was disposed of as infructuous as a large number of doctors and most of the applicants in that case had accepted all India seniority. The applicant chose not to pursue that matter further (which amounts to him too accepting that verdict). The applicant has repeatedly mentioned in his pleading that he had not accepted the option about all-India seniority at the time of his absorption (in the year 2016). However, his claiming financial benefits that come with being at par with other doctors of the ESIC, and accepting the verdict which was solely based on the acceptance by most of the doctors of all India seniority, amounts to a tacit acceptance and thereforecannot be treated as a unilateral change in the conditions of absorption (and thus, the verdict in 9 OA No. 258/2021 Sylviya Saroj's case does not apply on the facts of this case).
10. There are no other strong reasons, to prevent the applicant's transfer, from his present place of posting (Jaipur), to Bhiwadi. These other grounds (including that of the applicant being on the verge of retirement) were not even pressed at the time of arguments, and cannot be considered to be overriding reasons for any intervention in a matter of transfer. For these reasons, the applicant's prayers in this Original Application cannot be allowed. The Original Application is therefore dismissed. The I.R. stands withdrawn. No costs.
11. In view of the order passed in Original Application, pending Misc. Application No. 312/2023 is also disposed of.
(Dinesh Sharma) Member (A) !Vv~