ORDER
Shanker Raju, Member (J)
1. By virtue of the present original application a challenge has been made to an order passed by respondents on 15.2.2005 whereby the Applicant has been transferred to Guru Teg Bahadur Hospital (for short GTB) from Maulana Azad Medical College (for short, MAMC) in the capacity of Professor (Orthopaedics).
2. By an order dated 21.2.2005, operation of the aforesaid order had been stayed.
3. Briefly stated applicant, who was earlier on deputation to Bahrain, belongs to the cadre of Central Health Services of the Government of India. At Bahrain, it was detected that the applicant was suffering from skin cancer and due to non-availability of facilities for proper treatment, he was repatriated back to India in his parent cadre and was posted at Jipmer, Pondicherry. As the treatment for the ailment of the applicant was only available at AIIMS, he was, therefore, transferred from Pondicherry to MAMC on 19.12.2004.
4. By an order dated 27.1.2005 issued by the Ministry of Health and Family Welfare, Government of India, Dr. Sudhir K. Kapoor, Professor of Orthopaedics Surgery in MAMC was transferred to LHMC and one Dr. Tejveer Singh Chaggar was transferred from LHMC to Government of NCT of Delhi.
5. Earlier Dr. Ajay Kumar Gupta espoused his case for transfer to MAMC through the Private Secretary to the Prime Minister, vide letter dated 1.9.2003. Subsequently, the aforesaid request was reiterated on 27.1.2005 with the following request:
Sub. Posting of Maulana Azad Medical College, New Delhi.
Sir,
I am in reference to my earlier request dated 31.8.2003 on the above mentioned subject. It is on record that reply to my said request, which was under your signature Sir (D.O. No. 51/458/90/H and FW/295 dated 3.9.03, which says, inter alia, as under;
…However, we are posting Dr. Ajay Kumar Gupta in GTB Hospital against a vacant post of Orthopaedics Surgery. As and when the post falls vacant in MAMC, he will be considered for adjustment there.
I take this opportunity to bring it to your kind notice that Dr. Mukesh Kalra, Prof, of Orthopaedics has been made to join MAMC on 18.1.2005. While taking a decision regarding the posting of Dr. Kalra at MAMC, it appears that assurance given to me in terms of the letter dated 3.9.2003 to consider adjustment me in MAMC has inadvertently escaped attention and notice.
In view of the mater as mentioned, I request you to kindly reconsider my case for posting me to MAMC against the post in occupation of Dr. Mukesh Kalra and do justice to me.
6. Vide order dated 7.2.2005, Dr. Ajay Kumar Gupta has been transferred from GTB Hospital to MAMC but while joining, a letter written by the Deputy Director (Administration) of MAMC on 12.2.2005 to respondent No. 1 clearly appraised of the fact that there is no vacant post in Orthopaedics Department with the following reference:
Sub: Joining of Dr. Ajay Kumar Gupta, Prof, of Orthopaedics Department.
Sir,
Reference your Order No. F. 51/90/03/H&FW/307 dated 7.2.2005 in compliance of which Dr. Ajay Kumar Gupta, Prof, of Orthopaedics joined the institution on transfer. As per records of this office 7 posts of faculty are sanctioned in Orthopaedics deptt. and the under mentioned faculty member are working against these post.
1. Dr. A.K. Dhall,
2. Dr. A.K. Mehtani,
3. Dr. V.K. Gautam,
4. Dr. Lalit Maini,
5. Dr. Sumit Sural,
6. Dr. Mukesh Kalra,
7. Dr. Vinod Kumar.
Since there is no vacant post in Orthopaedics Department it is, therefore, requested that Dr. Gupta may please be posted in some other institution please.
7. In the above backdrop, by an order dated 15.2.2005, the applicant was transferred from MAMC to GTB Hospital and by an order dated 22.2.2005 issued by MAMC, Dr. Ajay Kumar Gupta was taken on the strength of MAMC retrospectively w.e.f. 7.2.2005.
8. Learned Counsel for the applicant in the above circumstances stated that when it has been specifically stated to respondent No. 1 that there is no vacant post in the Department of Orthopaedics, applicant’s transfer is on extraneous grounds with mala fides to create a post in MAMC to adjust Dr. Ajay Kumar Gupta in place of the applicant, which does not show either any administrative exigency or public interest in effecting the transfer of the applicant.
9. Mr. Bhardwaj, learned Counsel for the applicant states that the applicant has merely joined MAMC two months back whereas the other doctors like Dr. A.K. Dhall, Dr. A.K. Mehtani, Dr. V.K. Gautam, Dr. Lalit Maini, etc., who are senior to the applicant and had been working in the Orthopaedics Department of MAMC, have been retained but the applicant has been isolated and singled out for transfer is the outcome of pressure exerted by Dr. Ajay Kumar Gupta.
10. Learned Counsel states that one Dr. Sudhir K. Kapoor was transferred from MAMC to LHMC and Dr. Tejveer Singh Chaggar from LHMC to Government of NCT and was posted in GTB Hospital with a view to create a vacancy at MAMC for Dr. Ajay Kumar Gupta. This has been successfully implemented by displacing the applicant. It is further contended that since the sanctioned strength of faculty was only seven, eight faculty doctors could not have been accommodated. Learned Counsel states that earlier, due to a letter written from the Prime Minister’s office, respondent No. 1 promised Dr. Ajay Kumar Gupta to post him as soon as the post fell vacant in MAMC. One post is crated displacing the applicant by posting him to GTB Hospital from MAMC in order to accommodate Dr. Ajay Kumar Gupta and, hence, the aforesaid order is an outcome of mala fide exercise of powers.
11. As the transfer is on collateral grounds and without any administrative exigency and public interest, the same is not sustainable in the eyes of law.
12. It is further contended by Mr. Bhardwaj that in the light of the decision in O.A. No. 2398/1995 decided on 4.6.1996 in Dr. N. Rajagopal Acharya v. Union of India and Ors., law has been laid down that for Central Health Services, the Competent Authority to transfer is the President and without any delegation of powers, Government of NCT of Delhi is neither competent to transfer the officers nor post them. The aforesaid decision stood confirmed by the Apex Court in SLP No. 24247/1996 decided on 14.3.1997. According to Mr. Bhardwaj, on attainment of finality, respondents’ orders passed on 5.2.2005, which have not been issued by the Competent Authority i.e. the President, is without jurisdiction.
13. On the other hand, respondents’ Counsel Mr. Vijay Pandita strongly opposed the contentions and stated that the present original application is an abuse of process of law. It is contended that power of posting of the doctors of Central Health Services in the hospitals and medical colleges under Government of NCT of Delhi, is placed at the disposal of Government of NCT by the Government of India.
14. Mr. Pandita stated that order passed on 15.2.2005 is not a transfer order but a posting order of the applicant and as the posting cannot be interfered when it is in public interest and administrative exigency, judicial review is not permissible.
15. Learned Counsel would contend that when the Government of NCT of Delhi had posted the applicant from Pondicherry to MAMC then why not the same authority is competent enough to post the applicant in GTB Hospital.
16. Learned Counsel states that transfer from one place to another is an incident of service and respondents are free to assign place of posting of their employees. It is denied that the transfer of the applicant was done to accommodate Dr. Ajay Kumar Gupta.
17. In the rejoinder, learned Counsel for the applicant contended that in the light of the decision in the case of Dr. N. Rajagopal Acharya (supra), posting of doctors in Government of NCT of Delhi is without jurisdiction and, therefore, the transfer of the applicant was with mala fide intention, without jurisdiction and de hors the rules. It is further stated that applicant has not concealed any fact and the administrative exigency was lacking bona fide, as the sole aim of the respondents was to accommodate Dr. Ajay Kumar Gupta.
18. I have carefully considered the rival contentions of the parties and perused the material on record.
19. It is trite law that transfers and postings are done in an administrative discharge of duties by the Government and the same, in judicial review, cannot be scrutinized or interfered with. The only exception to the above is when the action is vitiated by mala fides or based on extraneous grounds, it can be interfered with.
20. It is equally settled that if mala fides are alleged, the same are to be founded on strong facts and to be proved to its hilt, In National Hydroelectric Power Corporation v. Shri Bhagwan 2002. S.CC (L&S) 21 : 2002(1) SLJ 86 (SC), in the matter of transfer, following observations have been made:
5. On a careful consideration of the submissions of the learned Counsel on either side and the relevant Rules to which our attention has been invited to, we are of the view that the High Court was not justified in interfering with the impugned orders of transfer. It is by now well settled and often reiterated by this Court that no Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. 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 through they are the Appellate Authorities substituting their own decision for that of the management, as against such orders passedin the interest of administrative exigencies of the service concerned….
21. If one has regard to the above, the condition precedent for interference in a transfer order is when it is an outcome of mala fide exercise of powers.
22. The brief factual matrix, as a background, shows that in Dr. N. Rajgopal Acharya’s case (supra), the Tribunal has made the following observations:
8. Two facts emerge from a reading of the extract of the note. Firstly, the Ministry of Health had informed vide their letter dated the 26th November, 1993 quoted in Chief Secretary’s letter of 10.1.1994, that Government of Delhi should not transfer Doctors from one hospital to another. No letter thereafter was written by the Ministry of Health changing the stand and there is only a note on the file dated 17.6.1994 by the Secretary (Medical) of NCT Delhi, which has been quoted above, observing that the Ministry of Health and Family Welfare had agreed to the proposal of NCT Delhi with liberty to even transfer teaching staff from one institution to other. We are not inclined to agree with the argument of the learned Counsel for the respondent No. 2 that the note of the Secretary (Medical), Government of NCT Delhi dated 17.6.1994, which has not been followed by any circular, formal order or notification either by the delegating authority or by the so called delegatee, can take the place of the statutory provisions. It is only the cadre Controlling Authority, namely, the Ministry of Health and Family Welfare which have been delegated powers of appointment, postings and transfers of the Members of the Central Health Service to which the applicant belongs. The applicant has also annexed a copy of the Additional Affidavit filed on behalf of the Ministry of Health and Family Welfare before the High Court in the case of Peoples Union of Civil Liberties and Ors. (supra). The said affidavit filed by one Shri N.M. Perumal, Deputy Secretary, Central Health Services and Vigilance, in the Ministry of Health and Family Welfare, N. Delhi, stated in paragraph 6 that the President has not delegated his power of Appointing/Disciplinary Authority under Central Civil Services (Classification, Control and Appeal) Rules to any subordinate authority in so far as the Central Health Services is concerned. The said affidavit has been filed on 7.4.1995. On the other hand, the meeting to which the note of Secretary (Medical), Government of NCT Delhi refers is dated 17.6.1994. It is, therefore, clear that the note of the Secretary (Medical), Government of NCT Delhi which has been quoted by respondent No. 2, could not find the approval and concurrence of respondent No. 1 since there “are not even any agreed minutes of the meeting in question and the respondent No. 1 continued to claim in its affidavit before the Delhi High Court that it did not delegate the authority to any one.
9. The learned Counsel for the respondent No. 2 in this connection drew our attention to an order of the Ministry of Health and Family Welfare dated 4.1.1996 (Annexure R-2) regarding selection to the Specialist Grade-II post of Assistant Professor Bio-Chemistry. This letter states that one Dr. Pramod Lali who was selected by the UPSC for appointment to the Specialist Grade-II post of Assistant Professor of Bio-Chemistry, may be allowed to join the post of Assistant Professor of Bio-Chemistry under the Government of NCT Delhi. The learned Counsel further submitted that there is no mention in this order where Dr. Lali had been appointed and this was done only by the subsequent order and this was done only by the subsequent order No. 51/ 738/96-M&PH issued by Joint Secretary (Medical), Government of NCT Delhi whereby Dr. Lali was posted to Maulana Azad Medical College, New Delhi. The learned Counsel submitted that this shows that the Ministry of Health had left it to the Government of NCT Delhi to post all the Central Health Services Doctors where they wanted and this case would corroborate the decision taken in the meeting held on 17.6.1994. However, we are unable to agree with this reasoning. So far as the applicant is concerned, his order of posting No. A 22012/10/89-CHS.III dated 28.7.1989 (Annexure-‘D’) issued by the Ministry of Health and Family Welfare was specific as regards his transfer from Maulana Azad Medical College, New Delhi to G.B. Pant Hospital, New Delhi. The applicant having been specifically appointed to G.B. Pant Hospital by the Ministry of Health and Family Welfare, which is his Cadre Controlling Authority, he could only be transferred by the same authority unless it could be shown by reference to any order or notification delegating this power to the Government of NCT Delhi that the Government of NCT Delhi was his Cadre Controlling Authority while working on a post under the Government of NCT Delhi.
23. If one has regard to the above, in the matter of transfer and postings of officers belong to Central Health Services, only the Cadre Controlling Authority i.e. Ministry of Health and Family Welfare is the Competent Authority to effect transfers and postings. For want of any material record produced to establish that the powers of postings have been delegated and notified by the Ministry of Health and Family Welfare to Government of NCT of Delhi, the order passed by the respondents transferring the applicant on 15.2.2005 is without jurisdiction. The decision in Dr. N. Rajgopal Acharya’s case has attained finality.
24. Apart from the above illegality, I find that in 2003, Dr. Ajay Kumar Gupta had requested for his transfer of MAMC. His case had been espoused to the Principal Secretary (Health), Government of NCT by the then Private Secretary to the Prime Minister’s Office on 1.9.2003. While reiterating this request on 27.1.2005, a D.O. letter dated 3.9.2003 has been relied by Dr. Ajay Kumar Gupta which shows that while issuing of posting of Dr. Ajay Kumar Gupta in GTB Hospital, it was stated that in so far as posting in MAMC is concerned, as soon as the post fell vacant, his case would be considered. However, from the record, I find that while Dr. Sudhir K. Kapoor was transferred from MAMC to LHMC and one Dr. Tej veer Singh Chaggar was transferred from LHMC to Government of NCT. The respondents, with a view to have Dr. Ajay Kumar Gupta posted at MAMC, further ordered posting of Dr. Tej veer Singh Chaggar to GTB Hospital and simultaneously by order dated 7.2.2005 Dr. Ajay Kumar Gupta had been transferred to MAMC.
25. It is pertinent to note that on joining of Dr. Ajay Kumar Gupta, Deputy Director (Administration) has clearly written to the Special Secretary (Health) that as per the record in so far as Orthopaedics Department is concerned, there are only seven posts in existence in the Faculty, which are occupied and against one of the posts applicant had been working. As no vacant post was in existence, a request had been made to post Dr. Ajay Kumar Gupta elsewhere. As an aftermath of this, the respondents have issued an order on 15.2.2005 transferring the applicant under the guise of posting from MAMC to GTB Hospital to create a post at MAMC in order to accommodate Dr. Ajay Kumar Gupta. The very fact of mala fide is apparent from the fact that the Tribunal vide its order dated 21.2.2005 restrained the respondents from giving effect to order dated 15.2.2005. However, the respondents by an order dated 22.2.2005, took Dr. Ajay Kumar Gupta on the strength of MAMC with retrospective effect from 7.2.2005.
26. The above sequence of events clearly points out displacement of the applicant in the guise of posting from MAMC to GTB Hospital just to accommodate Dr. Ajay Kumar Gupta. This, in my considered view, had neither been passed in an administrative exigency nor in public interest which is to be satisfied. As the impugned transfer is with an oblique reason and for collateral purposes to accommodate Dr. Ajay Kumar Gupta and with a view to create a post, applicant, being a junior most, who had joined merely two months back, retaining others, who had served for a considerable period, when there is no defined transfer policy, applying at the whims and fences principle of last come first go, taints this transfer order. This is nothing but amalafide exercise of the powers which cannot be countenanced in the wake of decision of the Apex Court (supra) where the proposition is that if the transfer is in mala fide exercise of powers, it has to be set aside.
27. Moreover, the Apex Court in Sarvesh Kumar Awasthi v. U.P. Jal Nigam and Ors. 2004 SCC (L&S) 523, while issuing notices in SLP, observed as under:
3. In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration.
28. If one has regard to the above, the commitment made by the Principal Secretary, Government of NCT in pursuance of a letter written by Prime Minister’s office, the ground of mala fide is not only established but proved to the hilts and vitiates the order of transfer.
29. In the result, for the foregoing reasons, the present original application is allowed. Impugned order is set aside. Respondents are directed to post the applicant at MAMC. However, they are at liberty to post Dr. Ajay Kumar Gupta as per the availability of posts in accordance with rules. No costs.