Central Administrative Tribunal - Ahmedabad
Dr Gaurav Zalavadiya vs Employees State Insurance Corporation ... on 23 October, 2024
:: 1 :: O.A.No.375/2024
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
O.A. No.375/2024
Dated this 23rd day of October, 2024
Reserved On:24.09.2024
Pronounced On:23.10.2024
CORAM:
Hon'ble Shri Jayesh V Bhairavia, Member (J)
Hon'ble Dr. Hukum Singh Meena, Member (A)
1. Dr.Gaurav Zalavadiya,
S/o Mohanlal Zalavadiya,
Age about 40 yrs.
Working as Chief Medical Officer,
Office of the Medical Superintendent
ESIC Model Hospital, Bapunagar,
Ahmedabad - 380 024.
Resident of A-602, Kens Height,
Opp. Sadguru Vatika Bunglows,
B/H Gangotri Circle, Nikol,
Ahmedabad - 382 350.
.....Applicant
(By Advocate: Mr. A.L.Sharma)
Versus
1. Employees State Insurance Corporation,
Represented by Director General,
Panchdeep Bhawan, CIG Road,
New Delhi 110 002
2. Chairman,
Employees State Insurance Corporation,
Ministry of Labour and Employment,
Shram Shakti Bhawan, New Delhi 110 001.
3. Medical Commissioner,
Medical Administration,
Panchdeep Bhavan,
CIG Road, New Delhi 110 002.
:: 2 :: O.A.No.375/2024
4. The Medical Superintendent,
ESIC Model Hospital, Bapunagar,
Ahmedabad - 380 024
......................Respondents
[By Advocate: Mr.S.D.Vasavada]
ORDER
Per : Hon'ble Dr.Hukum Singh Meena, Member (A)
Aggrieved with his transfer order dated 20.05.2023 bearing no.65 from Bapunagar Model Hospital, ESIC, Gujarat to ESIC Hospital Indore, the applicant has approached this Tribunal in the second stage litigation, praying for the following relief:-
"(A). The Hon'ble Tribunal be pleased to quash and set aside recommendation of the Transfer Committee No.A-
22013/15/2023-MED-VI, Annexure A-1 and order No.65 dated 20-05-2023, Annexure A-2, and order dated -06-2024, Annexure A-3, as, illegal, arbitrary, unconstitutional, contrary to settled legal position and in utter violation of principles of natural justice, null and void.
(B) Be pleased to allow this application with costs and be pleased to quantify the cost."
2. The facts of the case in brief are as follows:-
2.1 The submission of the learned counsel for the applicant is that the applicant was appointed as an Insurance Medical Officer (IMO) Grade-II w.e.f. 11.02.2010 with reference to the advertisement for recruitment of Medical Officers in ESIC Hospitals in the State of Gujarat in PB-3 Rs.15600-39100/- with Grade pay of Rs.5400/-. Consequently, he was given the benefit of Dynamic Accrued Career Progression (DACP) in the GP of Rs. 6600/- as an Insurance Medical Officer Grade-1 and thereafter, he was promoted as Chief Medical Officer and granted Financial Upgradation at Level-12 w.e.f. 10.02.2019.:: 3 :: O.A.No.375/2024
2.2 The counsel for the applicant further submitted that ESI Corporation issued a Transfer Policy dated 20.06.2022 for the Doctors of the ESI Corporation wherein para 4.2 of the said Transfer Policy provides for inviting online applications from the Doctors who have completed the tenure period of Medical Officer for more than 6 years at one station which could be extended for another three more years by the competent authority.
2.3 It is submitted that as per para 3 of the Transfer Policy, Medical Officers may give choices of medical institutions/stations as option for posting and, if, no such options are received from the eligible Medical Officers, such Medical Officer shall be considered for transfer/posting as per para 3.2 of the transfer policy. Accordingly, applicant had submitted choices of five places for posting through online. It is relevant to mention that Dr. Amee Amrutia, wife of the applicant is serving under Government of Gujarat as a Medical Officer CL-II, at Ayurveda Dispensary, Nava Naroda, Ahmedabad which entitles him for 10 points for special criteria as per the Priority Matrix of Transfer policy (Annexure-1). 2.4 It is contended that the applicant has received the transfer order dated 20.05.2023 from Bapunagar Model Hospital, ESIC, Gujarat to ESIC Hospital Indore. As per counsel for the applicant, it is contrary to the provisions of transfer policy of ESI Corporation. Subsequently, the applicant made representation dated 22.05.2023 to the Office of the respondent authorities against the impugned transfer order categorically referring clauses 7.4 and 7.10 of the policy and submitted that despite his spouse ground, he has been transferred while the medical officers who were seniors in terms of stay to him, posted in the station for longer period :: 4 :: O.A.No.375/2024 have been accommodated in the same station. (Annexure-
A/7). The counsel for applicant further submits that during the pendency of the previous OA, the representation made to the Transfer Grievance Redressal Committee was disposed on 20.05.2023 (Annexure A/1) without considering the grounds made by the applicant in the said representation. 2.5 The counsel for applicant further submitted that in view of the fact that he was not relieved nor any decision was conveyed on his representation and there being imminent possibility of relieving the applicant, pending redressal of his grievance, the applicant was constrained to approach this Tribunal by way of OA No.168/2023 whereby the applicant was protected by the interim order passed by this Tribunal vide its order dated 14.06.2023 (Annexure-A/8).
2.6 Subsequently, the applicant also filed representation to the National Litigation Committee (NLC) for redressal of his grievance dated 08.06.2023, during the pendency of the aforesaid OA No.168/2023. The said OA was disposed of on 02.05.2024 with the following directions:-
"12. Under these circumstances, without going into the merits, the present Original Application is disposed of with following direction.
(A) The competent Authority under the National Litigation Policy shall decide the pending representation dated 08.06.2023 within a period of 30 days from the date of receipt of the certified copy of this order by passing reasoned and speaking order and till the representation is decided interim relief dated 14.06.2023 shall remain operative.
13. Thus, in view of the aforesaid present Original Application is disposed of with directions. MA if any, shall also stands disposed of. No order as to costs."
2.7 The applicant has contended that the respondents have not followed the clauses 4.4,7.4 and 7.10 of its transfer policy dated 20.06.2022. It is relevant to mention that Dr.Amee :: 5 :: O.A.No.375/2024 Amrutia, wife of the applicant is serving under Government of Gujarat as a Medical Officer at Ayurveda dispensary, Nava Naroda, Ahmedabad. Hence, he is also entitled the benefit of be posted at/nearby places of posting of his spouse as per clause 7.10 of the policy of ESIC.
2.8 Additionally, as per the transfer policy and guidelines issued by DoP&T dated 24.11.2022, in para B(vii), there is explicit guidelines and provisions for posting the husband and wife at the same place or nearer to the station where either of the spouse is employed. Hence, the applicant submitted that the impugned order is in violation of the transfer policy of the DoP&T OM dated 24.11.2022 as well as the transfer policy of the ESI Corporation issued on 20.06.2022. 2.9 The following decisions are relied upon by the learned counsel for the applicant in support of his contentions:-
1. K K Prasad Vs. Union of India & Ors. reported in 2004 (3) ATJ 97.
2. Harpal Singh Kashyap vs. NCT of Delhi & Ors, reported in 2005 (2) ATJ 124.
3. T.D.Soni vs. The Special Secretary to the Govt. of India reported in 2003(3) ATJ 602.
4. Shilpi Bose (Mrs.) & Ors. vs. State of Bihar & Ors. reported in AIR 1991 SC S32
5. State of Punjab vs Joginder Singh reported in AIR 1993 SC 2486 2.10 The applicant has also referred to the common Order dated 16.05.2023 in OA No.503/2024 and connected matters in the case of Dr.G.Sugapriya vs Union of India & Ors. etc. etc., wherein it has been observed as under:-
"(i) answer the question of law in favour of the applicants that the impugned report of the 5th respondent dated 02.04.2022 and the consequential order of the 4th respondent dated 06.04.2024 are quashed and set aside in respect of the applicants herein.:: 6 :: O.A.No.375/2024
"(ii) I also hereby direct the respondents to redo the transfer exercise after considering all the Clauses of the Transfer Policy, including Priority Matrix at Annexure-1 within a period of 1 month from the date of receipt of this order.
(iii) Till such time, the respondents are directed not to take any coercive/disciplinary action against the applicants herein for not joining the transferred place of posting after relieving orders were passed.
(iv) The respondents are further directed to regulate the period of absence of the applicants (if any) from 06.04.2024 (relieving order) to till the date of pronouncement of this order, as per the extant rules.
(v) The respondents are also directed to permit the applicants to join the 4th respondent's Hospital till the respondents passes a speaking order as per the direction of the Hon'ble High Court of Madras."
2.11 The counsel for the applicant argued that the orders passed by the Transfer Grievance Redressal Committee and the National Litigation Committee were non speaking order, devoid of any reasons whatsoever for not considering the grounds raised therein. It is settled legal position that reasons are the soul of the decisions and its absence would render the order open to administrative chastism.
2.12 It is also relevant to mention that Transfer Grievance Redressal Committee had not even considered the Clause 4.4 of the Transfer Policy along with 'Priority Matrix' as mentioned in Annexure-1 and passed the order simply on the ground that applicant has already accepted for "All India Transfer" liability. 2.13 The applicant submits that the Transfer Grievance Redressal Committee's (TGRC) constitution did not comply with Clause 12.3 of the Transfer Policy wherein there is a provision of inclusion of the Medical Commissioner from the Headquarters as Chairman of the Committee whereas in the present case, TGRC included the "Zonal Medical Commissioner" and has been made the Chairman of the :: 7 :: O.A.No.375/2024 Committee which is explicitly contrary to the provisions of the transfer policy of ESIC.
2.14 The counsel for the applicant also recorded the statements that "the reasons for transfer by committee and its recommendations and communicated them to all the applicants via the online portal, is factually incorrect." The applicant had not been informed about his transfer and did not give him the place of his preference.
2.15 The learned counsel for the applicant submitted that in an identical case being OA No.622/2024, titled ESIC Union Punjab Region through its General Secretary vs. Employees State Insurance Corporation (ESIC) filed the Chandigarh Bench of this Tribunal in which identical transfer order had been under challenge and the Chandigarh Bench of this Tribunal had stayed the operation of transfer order dated 11.03.2024 qua the applicant therein.
3. Per contra, the Respondents have filed their reply opposing the claim of the applicant and prayed for dismissal of OA. 3.1 Learned counsel for the respondent argued that the applicant of this OA has suppressed the vital material facts before this Tribunal. It is clear that he filed OA on 29.08.2024 which was subsequently listed on 30.08.2024 whereas, the respondent No.4 has already issued relieving order and the same was served to the applicant and received on 29.08.2024. 3.2 The learned counsel for the respondents submits that the ESI Corporation is established under Section 3 of ESI Act and is independent autonomous body. ESI Act being benevolent legislation has been enacted by Parliament under Entry 23, 24 of List III of the 7th Schedule of the Constitution of India, which provides that Parliament has the power to make law for the purpose of social security, social insurance and :: 8 :: O.A.No.375/2024 numerous medical benefits to workers/employees. He further stated that main objects of ESIC are enshrined under Article 39(c )(d), Article 41 and 43 of Constitution of India, as per the social state directive policy and social welfare measure rendering socio economic justice. It is relevant to mention that there are more than 3.25 crores insured persons with more than 12.5 crore beneficiaries covered under ESI Scheme. It is further submitted that ESIC has kept Insured Person (IP) Quota for admission of Wards in its Medical Colleges. It is explicitly clear that ESI Act is fully empowered to transfer any of its employees to anywhere in India according to the requirement in the public interest.
3.3 Counsel for the respondents further submits that the applicant has been relying upon the order /judgment of Madras Bench Tribunal and Mumbai Bench Tribunal. So far as the judgment of Madras Bench Tribunal is concerned, the said judgment is challenged before the Hon'ble High Court of Madras whereby, Madras High Court has granted status-quo with regard to the service conditions and said matter is pending for adjudication.
3.4 Learned counsel has referred the case of S C Saxena vs Union of India, the Hon'ble Apex Court has held as under:-
"In the first place 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 report for work where he is transferred and make a representation as to what may be his personal problems."
3.5 It is further contended by the counsel for the respondent that as per the order of this Tribunal in OA No.168/2023 dated 02.05.2024 the representation of the applicant was duly considered by NLC and the report was :: 9 :: O.A.No.375/2024 received by e-mail to ESIC Model Hospital, Bapunagar on 28.08.2024 wherein representation of the applicant was not considered and accordingly, the same was disposed of. 3.6 Learned counsel for the respondent has also referred Clause 7.1 of the Transfer policy of the ESIC wherein it states that Mere existence of vacancy at an institution /station shall not entitle a doctor to remain posted at that institution/station or doctor serving outside of institute/station to be posted to his/her choice institution/station."
3.7 Learned counsel for the respondent has further relied on the DoP&T OM No.28034/9/2009-Estt.(A) dated 30.09.2009 and OM dated 24.11.2022 wherein spouse are not considered for posting at one station then cadre controlling authority has to give specific reason for not posting the spouse in the same place. In the present case also, the cadre controlling authority after considering the representation on the basis of spouse ground has communicated the applicant about the reason for not considering his representation to post at /nearby place of posting of his wife/spouse. He also referred the clause 7.4 of the transfer policy of ESIC which explicitly states that the seniority may be primary criteria but it does not state that it will be the only criteria for transfer place of posting. The place of posting can be decided as per clause 3.2 (3.2.1 to 3.2.5), which reads as under:-
"3.2 All doctors of ESI Corporation shall be covered and will be liable for transfer and posting anywhere in India under this policy. However, for the purpose of posting on transfer under this policy, they will be considered in the following priority:-
3.2.1 At the institution of their choice, failing which, :: 10 :: O.A.No.375/2024 3.2.2 At any of the institution situated at the station of their choice/posting, failing which 3.2.3 At any of the institution situated within the zone in which the medical officer is posted, failing which, 3.2.4 In the contiguous zone to the zone in which the medical officer is posted, failing which, 3.2.5 At any location where the vacancy is created/available."
3.8 It is submitted that the applicant has been rightly transferred as per clause 3.2. Further clause 13.7 of the said Transfer Policy also states as under:-
"Directly Recruited Insurance Medical Officers (IMO Gr.II)/specialists/teaching faculty shall be posted in ESIC Hospitals / Institutions based on their merit after considering transfer requests from the serving medical officers of Corporation from stations where these Doctors are proposed to be posted subject to the provisions of this transfer policy."
3.9 Learned counsel for the respondents referred the order of the Hon'ble Madras High Court in the case of The Director General, ESIC and others vs. Dr. K. Radhika and another etc. etc. in WP Nos.15118, 1521, 15126,15135, 15151, 15178, 15182 and 15214 of 2024 and judgment and WMP Nos.16414, 16423, 16432, 16459, 16473, 16503, 16510 and 16547 of 2024 wherein it has been unequivocally held that in the matter of transfer, employees personal grievances could not be superseded the public interest. He also referred the common order of Chennai Bench of this Tribunal dated 18.10.2023 in OA No.463/2023 and other connected cases, titled Dr. s. Shobhana vs. Union of India and others, etc. etc. wherein it has stated in its last para that:-
"The applicants are directed to report to duties at the transferred place since they are lifesaving doctors to support the administration by serving in the exigencies.":: 11 :: O.A.No.375/2024
3.10 Learned counsel for the respondents argued that the transfer order has been issued as per Transfer policy of the ESIC dated 20.06.2022 and in every committee report, relevant clause of policy has been quoted, hence the same has not been disregarded. In support of the same, he referred Hon'ble Apex Court judgment in the case of S K Nausad Rahaman vs Union of India, reported in (2022) 12 SCC 1, the relevant portions of the said judgment are extracted hereunder:-
"24 First and foremost, transfer in All-India Service is an accident of service. Whether and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice.
25. Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration."
3.11 Based on the facts as mentioned hereinabove, counsel for respondents submitted that application of the applicant should not be considered and same may be dismissed.
4. Heard the learned counsel for both the parties.
4.1 Learned counsel for the applicant has argued that wife of the applicant is in the Government service of Gujarat and posted as Medical Officer CL-II, at Ayurveda Dispensary, Nava Naroda, Ahmedabad. Therefore, the applicant has privilege to consider his place of posting according to the DoP&T OM dated 24.11.2022 especially the para B(vii) which reads as under:-
"Where one spouse is employed under the Central Govt. and the other spouse is employed under the state Govt.:-
"The spouse employed under the Central Govt. may apply to the competent authority and the competent authority may post the said officer to the station or if :: 12 :: O.A.No.375/2024 there is no post in that station to the State where the other spouse is posted."
4.2 It is further stated that there is a clear guideline to post the husband and wife at the same place under the central Government. If the spouse is employed in State Government in that case, Central Government may consider the employee to be posted or nearer to the station where spouse is employed. Therefore, the applicant submits that the impugned order is in violation of the transfer policy of DoP&T and policy dated 20.06.2022 of ESIC which prescribes that for posting consideration of husband and wife shall be governed as per guidelines of DoP&T in the matter. It is relevant to mention here that the applicant has filed OA No.168/2023 wherein this Tribunal has directed the NLC to consider the grievance of the applicant and pass a speaking order. Although the application of the applicant has been considered by the NLC, however, same has been disposed of without assigning any cogent reason.
4.3 Learned counsel for the applicant further submits that there are three vacancies available near the posting station of his spouse and it will be convenient, if, the request of the applicant is considered for posting near to the posting of his spouse, the Government servant to disburse/discharge his duties as well as for the public at large.
5. Per contra, learned counsel for the respondents argued that appointment of the applicant is All India Transfer basis. Therefore, under the administrative exigencies, the transfer from one place to another place is inevitable. He further stated that the applicant has suppressed the material fact that he was relieved on 29.08.2024 whereas the same information was not furnished or submitted before this Tribunal during the hearing scheduled on 02.09.2024.
:: 13 :: O.A.No.375/20246. It is relevant to mention that the orders of both Chennai Bench Tribunal and Mumbai Bench Tribunal have been challenged in the Hon'ble High Court of Madras and same has been stayed in favour of the respondent. It is relevant to mention that as per the ESI Corporation Transfer Policy 2022, a person can stay at one place for a maximum period of 6 years which can be extended for another 3 years on his request. The present applicant has been posted in the year 2010 at same station and he is continuously working for the last 14 years. Therefore, there is a valid reason for transferring him to other stations.
7. After hearing both learned counsel and on perusal of the documents and contextual directions/orders of the concerned departments, it is an undisputed fact that the applicant has been appointed as an Insurance Medical Officer Grade-II w.e.f. 11.02.2010 in the ESIC Hospital, Bapunagar and he is continuously working since then. ESI Corporation has formed a comprehensive transfer policy which was issued vide its letter dated 20.06.2022 wherein they have stipulated different parameters for consideration of the transfer of the Government servants. These Rules include transfer of the posts of super specialists, teaching faculties, Dental, Ayurveda and Homeopathy performing non-administrative/clinical functioning especially reference will be made to para 3.2, 7.4 & 8 of the policies which are stated hereunder:-
"3.2 All doctors of ESI Corporation shall be covered and will be liable for transfer and posting anywhere in India under this policy. However, for the purpose of posting on transfer under this policy, they will be considered in the following priority:-
3.2.1 At the institution of their choice, failing which 3.2.2 At any of the institution situated at the station of their choice/posting, failing which 3.2.3 At any of the institution situated within the zone in which the medical officer is posted, failing which, :: 14 :: O.A.No.375/2024 3.2.4 In the contiguous zone to the zone in which the medical officer is posted, failing which, 3.2.5 At any location where the vacancy is created/available."
7.4 The seniority of the doctor(s) in the institution and/or station from which such transfer is being proposed shall be the primary criteria for selecting Doctor(s) for transfer. In other words, Doctor(s) posted at an institution and/or station for a longer period shall be considered for transfer out first. Doctors posted for the longest period at an institution and/or station will be considered first for posting to less preferred institution and/or station in the zone of his posting.
8. Tenure All clinical postings of doctors shall normally be for a period of six years provided there is no serious complaint of misconduct against the doctor or it is expedient in public interest to transfer him/her before completion of the minimum tenure. This may be extended by the competent authority with specific reasons for a further period of three years.
8.2 A medical officer including the newly appointed doctors, however, can apply for transfer/posting to another institution/station after 3 years of posting at an institution.
8.3 A medical officer posted to an administrative post
can be transferred/posted to any other
institution/clinical assignment as per administrative requirement/exigencies without completion of the normal tenure by the competent authority..."
8. It is also relevant to refer the DoP&T OM dated 24.11.2022, especially the para B(vii) which reads as under:-
"Where one spouse is employed under the Central Govt. and the other spouse is employed under the state Govt.:-
"The spouse employed under the Central Govt. may apply to the competent authority and the competent authority may post the said officer to the station or if there is no post in that station to the State where the other spouse is posted."
9 & 9.1 In the present case, although the choices have been taken from the applicant for consideration of transfer stations and learned counsel for the respondents has not denied the fact that there were cases where the doctors who were senior than the applicant were accommodated according to their choices near to the previous places of postings whereas the applicant has not been considered for his :: 15 :: O.A.No.375/2024 request neither by Transfer Grievance Redressal Committee (TGRC) nor by National Litigation Committee inspite of the fact that his wife is also working as a Government Doctor in the Government of Gujarat posted as Medical Officer, CL-II, at Nava Naroda, Ahmedabad. Although there are directions in number of cases by Hon'ble Supreme Court especially, in the case of S C Saxena vs Union of India, SK Nousad Rehman vs Union of India and Namrata Verma vs the State of UP wherein it is reiterated that "it is for the employee to insist to transfer him/her at a particular place. It is for the employer to transfer an employee considering the requirement." However, as per the directions issued by DoP&T to provide comfort/convenience to the Government Servant in discharge of duties especially whose spouse is also working in the Government. Special reference of para B(vii) of the DoP&T OM dated 24.11.2022 may be relevant wherein it is clearly mentioned that, if, one spouse is employed under the Central Government and other spouse is employed under State Government, which is the case of the applicant, then the spouse employed under Central Government may apply to the competent authorities which may consider his request to post at/near the posting station of his/her spouse.
9.2 Although Tribunal should not interfere in normal cases of transfer specially in the transfer posting policy of the various authorities unless there are gross violation of fundamental rights or policies in vogue. There are number of judgments and orders of Hon'ble High Courts and Hon'ble Supreme Court validating the above facts. However, in the present case, there is violation of policy laid down by DoP&T OM No.1669289899529 dated 24.11.2022 [para B(vii)] for posting of spouse at/near to the posting station of each other in the case where one of the spouse in Central Government and other is :: 16 :: O.A.No.375/2024 working in the State Government, subject to availability of vacancies.
10. Based on the facts and considering all the arguments as mentioned hereinabove, it is our considered view that transfer order issued by letter no.65 dated 20.05.2023 in the case of the applicant is set aside and respondents are directed to consider the request of the applicant for consideration at/nearer station of place of posting of his wife as per the existing transfer policy of ESIC and direction of DoP&T vide OM dated 24.11.2022 wherever the vacancy is available.
This OA is allowed accordingly. Pending MA if, any also be disposed of. There shall be no order as to Costs.
(Dr. Hukum Singh Meena) (Jayesh V Bhairavia)
Member (A) Member (J)
SKV