Dr. Chhabilendra Roul, Member (A)
1. The present OA has been filed under section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
“Applicant humbly pray order of applicant 62 A-22013/15/2023-MED-VI, should be quashed and he should be posted at initial place of
Clinical posting with immediate effect.
To call the record of vacant position for regular post of Faculties for clinical and medical administration post at the time of transfer
committee decision and now.
Suitable strictures against erring Corporation be passed to prevent recurrence of such arbitrary decision making. Compensation for the
litigation cost and sufferings due to impugned order.â€
Factual Matrix:
2. The applicant is a professor of Orthopedics with the ESIC Hospitals and was posted at Basaidarapur, New Delhi since 2010. By order dated
20.05.2023, the applicant has been transferred to Joka, West Bengal. Aggrieved by the same, the applicant has preferred a representation to the
National Litigation Committee and the Grievance Redressal Committee. The Grievance Redressal Committee considered the cause of the applicant,
and it was deemed rejected as he was thereafter relieved by order dated 11.11.2023. The National Litigation Committee responded to his request on
12.07.2024 reiterating the decision of the Grievance Redressal Committee. Accordingly, the applicant joined at Joka, West Bengal. Aggrieved by the
transfer order dated 20.05.2023, the applicant has preferred the present O.A. seeking the aforementioned relief(s).
3. Notices were issued to the respondents and they have filed their counter reply, to which the applicant has also filed his rejoinder.
4. While explaining his cause, the applicant, who appears in person, while drawing attention to the order placed at page 79 wherein the
recommendations of the Transfer Committee are placed, submits that his cause has been rejected and the reason for rejection as cited there is “As
per clause 3.2â€. The applicant draws attention to the Transfer Policy dated 20.06.2022 (page 53) and submits that the clause 3.2 rather, finds favor
to the applicant. He submits that in line with the policy he had opted for Delhi and Faridabad as his choice. However, his choice has not been
considered by the respondents. He submits that, in fact, sub clause 3.2.5 is resorted to when all the options from sub clause 3.2.1-3.2.4 have been
exhausted and accordingly, the applicant would be transferred to a place where the vacancy is created or available. He submits that along with the
rejoinder he has placed a sanctioned strength of doctors at Joka and the list clearly demonstrates that with respect to the professors of Orthopedics,
there was only one vacancy and after the applicant had joined at Joka, there are now two professors against the one vacancy, thereby, implying that
there is additional strength at Joka. Therefore, the applicant submits that he has been transferred without any vacancy. He details that the constitution
of the Transfer Committee as defined in clause 6.2 is deficient for the reason that it should have had one medical education member. The applicant
details that while making his representation (Page 83) before the Redressal Committee he has sought transfer against an administrative vacancy as
well. However, the respondents have ignored his claim and have not responded to it. He submits that the respondents were obliged to consider his
case and pass appropriate orders, irrespective of the outcome. He explains that in view of the Annual General Transfer Policy the respondents have
sought requisition for the year 2024 as well and after the requisition of 2024 have been sought the transfers of the year 2023 would become void and
the applicant could be brought back to the New Delhi. He submits that in terms of the Annual General Policy for 2024, the applicant has sought his
transfer from Joka to New Delhi in light of the fact that his daughter is studying in Class X (Academic Year 2024-25) and her board exams are fast
approaching. This request of the applicant has been rejected by the respondents by a speaking order dated 28.11.2024.
5. Mr. Amit Chawla, learned counsel for the respondents vehemently opposes the O.A. He draws strength from the Transfer Policy dated 20.06.2022
(Page 53) and submits that clause 8 of the policy is explicitly clear as it states that postings of doctors shall normally be for a period of six years and
the applicant has already stayed in Delhi for thirteen years. He submits that clause 7 of the policy details that mere existence of a vacancy at a
particular place cannot entitle an incumbent to remain posted at that station. He submits that administrative exigencies would prevail over the vacancy
position. He explains that it is only after determining the requirements and feasibility that the incumbents are transferred from one place to another. He
elaborates that the applicant has already completed 13 years at Basaidarapura and due to administrative exigencies he has been transferred from
Basaidarapur to Joka. With respect to the vacancy position explained by the applicant, learned counsel for the respondents submits that the list is dated
11.06.2024 and it takes into consideration the fact that the applicant had joined Joka, however, since he has no instructions he cannot comment upon
the veracity of the same.
5.1 In relation to the submission regarding the constitution of the Transfer Committee, learned counsel for the respondents submits that it is not
mandated that a medical education member should be a part of the committee. He explains that the applicant had given his choice as New Delhi and
Faridabad which would mean that he would be retained in Delhi. As regards the Annual General Transfer, learned counsel submits that the case of
the applicant has already been considered and rejected by the Competent Authority and communicated to the applicant by the order dated 28.11.2024.
5.2 Later, upon instructions, Mr. Amit Chawla, learned counsel for the respondents confirms that the vacancy position as detailed in the rejoinder by
the applicant at page 13 dated 11.06.2024 is correct. He reiterates that in view of the administrative exigencies, the services of the applicant were
required at Joka, West Bengal, and accordingly, he was transferred. He submits that the respondents have complied with the transfer policy in letter
and spirit and since the policy is not under challenge the applicant is obliged to join at the place of posting. He submits that in judicial review, specially,
with respect to transfer matters the Tribunal has limited scope of intervention as the transfers are in administrative exigencies.
Analysis
6. We have heard the applicant in person and the learned counsel for the respondents carefully and perused the records of the case thoroughly.
6.1 The basic issue which is relevant for adjudication of the present OA is whether the respondent’s action is a colourful exercise of power. The
applicant, though has not alleged expressly mala fide on the part of the Respondents, the thrust of his averments is the arbitrariness on the part of the
respondents in dealing with his transfer, violating the set guidelines issued by the respondents and thereby leading to colourful exercise of power by the
respondents.
6.2 The grounds stated by the applicant seeking the relief in this OA revolves around the allegation that the respondents have acted in an arbitrary
manner in violation of the Transfer Policy, 2022, particularly clause 3.2 of this policy. For better appreciation, Clause 3.2 of the Transfer Policy, 2022
(page 55 of the OA) is reproduced as follows:
“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 All 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
3.3.2 At any of the institution situated within the zone in which the medical officer is posted, failing which
3.2.4 In the contiguous zones to the zone in which the medical officer is posted, failing which
3.2.5 At any location where the vacancy is created/available.â€
6.3 Though the applicant has tried to point out that the respondents have violated each and every sub-clause under clause 3.2, the respondents,
particularly the Transfer Grievance Committee of the Respondents, have confirmed each of the options for the applicant in respect of sub-clauses
3.2.1 to 3.2.4. The applicant has not been able to provide any evidence to counter the claim by the respondents in their counter affidavit referring to
the Report of the Grievance Committee dated 20.05.2023 that the respondents have considered all the options pertaining to these sub-clauses and
could not accommodate the applicant against his choices in the existing zone or in the adjoining zone. In absence of any credible counter evidence, we
accept the assertion by the respondents in that respect.
This leaves the judicial review of the respondents in respect of sub-clause 3.2.5 of clause 3.2 of the Transfer Policy, 2022. We recognize the
prerogative of the administrative authorities to effect manpower adjustment to manage its affairs efficiently. But such readjustment should not only be
just, it should also appear as just. The respondents have stated that the transfer of the applicant to out of zone to West Bengal has been effected in
public interest keeping in view administrative exigencies. But there is no supporting evidence as to how transferring a Medical Professor of Education
Cadre to a non-existence post is in public interest and under what administrative exigencies. The respondents have admitted that there was no vacant
post of Professor at Joka in West Bengal, the place to which the present applicant has been transferred. As it has been stated in Paragraph 5 above,
the learned counsel for the respondents, on instruction from the respondents, had confirmed the vacancy position of Professor of Orthopedics at Joka
in West Bengal as per Annexure AA/1 attached with the rejoinder. Hence, it is clearly proved that the applicant has been transferred to a non-existent
post. Hence, it violates the part of sub-clause 3.2.5 where it states that the employee can be transferred to any where in India subject to availability of
vacancy.
6.4 Now the question arises whether the respondents have the prerogative of creation of post and transferring any employee against the said vacancy.
This Tribunal recognizes this right of the competent authority to create vacancies and post employees against such vacancy. But, in the instant case,
though the respondents say that the transfer is in public interest and due to administrative exigencies, nowhere it has supported the claim of creation of
additional post of Professor of Orthopedics at Joka in West Bengal nor it has given any specific administrative exigency like data pertaining to rush of
patients at Joka necessitating the exigency. Even, such administrative exigency like rush of patients would require a temporary adjustment, enabling
the transferred employee to draw the benefits of temporary shift to a non-existing post (deputation to temporary headquarters enabling TA/DA for the
temporary period). None of these justifications have been furnished by the respondents. Hence, the action on the part of the respondents to transfer
the applicant to a non-existent post is arbitrary and amounts to colourable exercise of power.
6.5 The Hon’ble Apex Court in several judgments have held that arbitrary or colourable exercise of power by the administrative authorities
violates rule of law and sound principles of good governance. The earliest of this genre is the judgment of the Apex court in E.P. Royappa Vs State
of Tamil Nadu & Anr [1974 AIR 555]. The Apex court has held that:
“It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority
has a wide discretion in the matter. The Government is the best judge to decide how to distribute and utilize the services of its employees. However,
this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on
extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power.
Frequent transfers, without sufficient reasons to justify such transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for
professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, than is to
accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration that even administrative actions
should be just and fair.â€
Subsequently, a series of judgments by the Apex Court have reiterated and substantiated this view. These judgments are: -
(i) Varadha Rao Vs State of Karnataka And Ors., AIR 1986 SC 1955
(ii) Union of India & Ors Vs H.N. Kirtania, 1989 AIR 1774
(iii) Shilpi Bose Vs State of Bihar, AIR 1991 SC 532
(iv) Kumari Shrilekha Vidyarthi and others vs Sate of UP and Others, (1991 AIR 537]
(v) Food Corporation of India vs. M/s Kamdhenu Cattle Feed Industries, Civil Appeal No. 4731 of 1992
(vi) Chief General Manager (Telecom) Vs Shri Rajendra Ch. Bhattacharjee ... on 18 January, 1995
(vii) National Hydroelectric Power Corporation Ltd Vs Shiv Bhagwan & Anr, CA no. 1095-96 of 2001 decided 11.9.2001
(viii) Union of India And Ors Vs Sri Janardhan Debanath And Anr, Appeal (civil) 1010-1011 of 2004
(ix) Mohd Masood Ahmad Vs State of UP & others, CA 4360 of 2007
(x) Somesh Tiwari Vs. Union of India and Others, (2009) 2 SCC 592
(xi) Punjab and Sind Bank & Ors. Vs. Durgesh Kuwar, 2020 SCC Online SC 774
(xii) Mrs X Vs Regisrar General, High Court of Madhya Pradesh & Anr, WP No 1137 of 2018
The Apex Court in Shilpi Bose (Supra) has held that:
“4. In our opinion, the Courts should not interfere with a transfer Order which are made in public interest and for administrative reasons unless the
transfer Orders are made in violation of any mandatory statutory Rule or on the ground of malafide. A Government servant holding a transferable post
has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other.â€
6.6 The other averment by the applicant, that though he has categorically mentioned that his daughter is in class 9th and he seeks a stay at the present
place of posting and as per the guidelines, such personal difficulties should be given weightage while considering transferring him to appropriate place,
does carry conviction with this Tribunal. As it has been rightly held by the Apex Court in Shilpi Bose (Supra) case, transfer is an incident of a
transferable service. The guidelines like consideration of children’s education are guiding principles, but these are not binding on the respondents
not to effect transfer. In other words these guidelines do not provide indefeasible right to the applicant to stay at a particular place of posting or in a
particular region. In the instant case, the applicant had spent nearly 13 years at the present place of posting. Hence, he is liable to be transferred out
as per the extant transfer guidelines. However, non-consideration of the circumstances prevailing in respect of the present applicant at par with other
similarly placed employees do provide contextual background for appropriate inference regarding arbitrariness on the part of the respondents.
Conclusion:
7. In the instant case, as the respondents have transferred the applicant to a non-existent post, and no temporary post has been created at Joka, in the
contextual background of non-consideration of the education of the daughter of the applicant, it is construed that the respondent’s action is
violation of their own stated Transfer Policy and hence, it is arbitrary. In view of this the transfer order dated 20.05.2023 qua the present applicant
deserves to be quashed. Nevertheless, we recognize the right of the respondents to transfer any employee, including the present applicant if they have
completed the relevant years at a particular place or otherwise against vacancies for administrative reasons and in public interest.
8. In view of the above, the present OA is allowed with the following directions:
i) The transfer of the present applicant vide order dated 20.05.2023 from Basaidarapur in Delhi to Joka in West Bengal is quashed.
ii) The applicant shall be allowed to perform his duties at Delhi till the respondents take appropriate steps as per the directions contained in (iv) to (v)
below.
iii) The applicant shall furnish his choices of places of posting against clear vacancies a) within his pre-transfer zone i.e. Delhi; (b) adjoining zones to
Delhi Zone; and (c) outside the adjoining zones anywhere in India within 10 days from receipt of the certified copy of this order.
(iv) The respondents shall consider his choices within a week from the date of submission of choices and take appropriate decision regarding this.
(v) In case, the respondents will not be in a position to accommodate the applicant as per his exhaustive list of choices and preference and they decide
to transfer him to any place in India outside his choices for administrative exigencies, they should pass a reasoned and speaking order in that respect,
again within a week of receipt of applicant’s choices.
There is no order as to costs.
All pending MAs are disposed of accordingly.