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1985 DIGILAW 159 (CAL)

In re : C. C. Kar v. .

1985-04-23

B.P.BANERJEE

body1985
ORDER This writ application was moved by the petitioner who is admittedly an eminent cardiologist in India and was posted as Professor and Head of the Department of Cardiology in the Institute of Post Graduate Medical Education and Research at Seth Suklal Memorial Hospital (referred to as I P.G M E & R.) against his order of transfer dated 22nd January, 1985 from I P.G M E. & R. to Nil Ratan Sarkar Hospital (referred to as N R.S. College Hospital), Calcutta Admittedly, the petitioner had a brilliant academic Career. He was graduated in M.B.B.S. Course from Calcutta University in the year 1952, obtained D.C.H. Degree from London University in the year 1956 and in the year 1961,thepe'itionerbecamea Member of the Royal College of Physicians (MRC.P) of Glasgow United Kingdom. In the same year the petitioner also became a Member of Royal College of Physicians (M.R.C.P.), Edinburough, United Kingdom with special subject as Cardiology. The petitioner joined as a Medical Officer in the cadre of West Bengal Health Service at S.S.K.M. Hospital in Calcutta It is an admitted fact that the petitioner also acquired various distinction in the field as a caudio'ogist and attended several seminars in Cardiology and the petitioner had made remarkable contribution in the field of Cardiology both in national as well as in the international level. 2. The petitioner's further case that the petitioner was holding the post of Professor and Head of Department of Cardiology in the Insitute of Post Graduate Medical Education and Research, Calcutta and that he was the senior most Professor of Cardiology in the State Medical College and Teaching Institution in the West Bengal Health Service The petitioner further stated that the petitioner was elected as a Vice President of the Asian Pacific Congress of Cardiology for the period from 1983 to 1987 and was elected as President of Cardiology Society of India for the term 1984-85 Further the petitioner was holding the post of (a) Member of Education Committee of Asian Pacific Congress, (hi Member of Asian Pacific Society of Cardiac Pacing, (c) Member of Award Committee for Asian Pacific Society of Cardiac Pacing, (d) Examiner for Ph. D. Course of Jadavpur University The petitioner further stated that at the instance of the petitioner, various improvements were made in the Department of Cardiology in the State Medical College. D. Course of Jadavpur University The petitioner further stated that at the instance of the petitioner, various improvements were made in the Department of Cardiology in the State Medical College. All these facts are not in dispute Since the petitioners appointment in the Medical Service in the year 1964, the petitioner was posted in the said S.S.K M. Hospital and the petitioner was teaching in Post Graduate Medicine Course. 3. On or about 22nd January, 1985, the petitioner was served with an order of transfer by which the petitioner was transferred from S.S.K.M. Hospital to Nitratan Sarkar Medical College. The petitioner challenged the validity of the said order of transfer on various grounds which are enumerated hereinbelow: 4. The first ground of challenge was that the petitioner was holding the post of Professor and the Head of the Department of Cardiology and whereas the petitioner has been transferred as Professor, Department of Cardiology in the Nil Ratan Sarkar Medical College and that according to the petitioner, the petitioner was appointed by an order of the Governor to the post of Professor and Director of the Department of Cardiology and whereas the appointment as Head of the Department is made by the Principal of the College. The second contention of the petitioner is that the order of transfer which was passed by the order of the Governor, did not bear the endorsement that the said posting had been made in the interest of public service But the Assistant Secretary who communicated the order, had made the endorsement that the said order was passed in the interest of public service and the petitioner should be deemed to have been released with effect from 22.1.85. The petitioner contended that such deeming release if it indicates anything indicates that the authorities who proceeded with the matter mala fide, was in a hot haste to dislodge the petitioner from the post the petitioner was holding and that no emergent situation arose which warranted such deeming release with effect from the date of the service of the order. The petitioner contended that such deeming release if it indicates anything indicates that the authorities who proceeded with the matter mala fide, was in a hot haste to dislodge the petitioner from the post the petitioner was holding and that no emergent situation arose which warranted such deeming release with effect from the date of the service of the order. The third contention of the petitioner is that in I P G.M.E & R. the petitioner was teaching the Post Graduate students in Cardiology whereas the petitioner, if transferred to N.R.S. Medical college, had to teach under-graduate students where Cardiology is not a special and separate subject and that the petitioner who is an eminent cardiologist, his service would not be properly utilised by transforming the petitioner to N.R.S Medical College and that the petitioner's service would have been utilised better and proper if the petitioner was kept in the Seth Suklal Karnani Medical Hospital The petitioner further contended that such a posting amounts to a demotion and reduction in rank. The petitioner's last contention was that the petitioner had been transferred from the post of Director and Professor of Cardiology, I P.G.M.E & R. for the purpose of filling up the vacancy in N.R.S. Medical College which was caused due to the transfer of Dr. J C. Ghosh from N.R.S. Medical College Hospital to Medical College and that nobody bas been transferred in the vacancy caused by the transfer from S.S.C.M. Hospital. On the basis of this fact, the petitioner contended that the real purpose of the order of transfer was not in public interest and that such a transfer is on the face of it mala fide because as admittedly after the transfer of the petitioner from I P.G ME. & R. nobody has been transferred in the post of Professor and Director of Cardiology, but a junior to the petitioner who was posted in I P G.M E. & R., was directed to take over charge from the petitioner. & R. nobody has been transferred in the post of Professor and Director of Cardiology, but a junior to the petitioner who was posted in I P G.M E. & R., was directed to take over charge from the petitioner. The petitioner also contended that the predecessors in office of the petitioner were not transferred out of I.P.G.M E. & R and that as such the petitioner could not be transferred out from that place particularly as there are only two years left for his retirement from the service The petitioner further contended that if the petitioner is transferred from I.P.G.M.E. & R. to N R.S. Medical Hospital, in that event the petitioner would lose the same post to which the petitioner was holding by virtue of the office which the petitioner was holding in I.P.G M E & R. 5. Mr. Saktinath Mukherjee, learned Advocate appearing on beha1f of the petitioner, contended in. the first place that the order of transfer was not passed in the public interest and/or in the exigency of the public service. In support of his contention, Mr. Mukherjee pointed out that in the order of transfer which was passed by the order of the Governor, there was no mention of any public interest; but the memo under which the said order of transfer was communicated by the Assistant Secretary it was mentioned that "the posting of the officers have been made in the interest of public service "and further pointed out that in the order of transfer the Assistant Secretary made an endorsement that "Dr C. C. Kar should be deemed to have been released with effect from 22.1.85." On the basis of the said endorsement contained in the order of transfer, Mr. Mukherjee contended that the order of transfer has not been made in the interest of public service and that such deemed release clearly indicated mala fide on the part of the respondents concerned. It was further contended that nothing was disclosed in the affidavit-in-opposition filed on behalf of the respondents, as to why such order of transfer was made in public interest Mr. Mukherjee also contended that the operative reason for transfer was mala fide and not for the exigency of public administration. In Support of his contention that the order was not passed in public interest, Mr. Mukherjee also contended that the operative reason for transfer was mala fide and not for the exigency of public administration. In Support of his contention that the order was not passed in public interest, Mr. Mukherjee contended that the petitioner was serving in I.P G.M E & R. for a long time and was the Head of the Department of Cardiology and was taking Post. graduate classes in Cardiology and that by virtue of the impugned transfer, the petitioner would be required to teach under-Graduate students in N. R S Medical College It was further contended that it was a clear case that for some unknown reason, the petitioner has been transferred to teach in Under Graduate classes whereas the petitioner's service could have been better utilised in public interest in I P G M.E & R. particularly in view of the fact that cardiology is not a separate subject in the Under Graduate medical course. Mr. Mukherjee also contended that court is entitled to find out what was the operative reason for such transfer ; was it in the exigency of the public administration or for extra-administrative consideration having no relevance to the question of transfer? Was the transfer of tile petitioner from I P.G. ME & R. to N.R.S Hospital so irrational or unjust that it could not have been made by any reasonable administration except for collateral reason and in support of his contention, Mr. Mukherjee relied on paragraph 86 of the judgment of Supreme Court of India in E.P. Royappa1) State of Tamil Nadu reported in AIR 1974 SC 555 Mr. Mukherjee also relied on R judgment of Kerala High Court in P. Pushanakawn v. The Chairman, Coir Board Cochin & anr. reported in 1979 (1) SLR page 309 and relied on paragraph 24 at page 315 of the said judgment wherein it was held that "the right to transfer an employee is a powerful weapon in the hands of the employer. Sometimes it is more dangerous than other punishments. Recent history bears testimony to this It may, at times, bear the mask of innocuousness. What is ostensible in a transfer order may not be the real object. Sometimes it is more dangerous than other punishments. Recent history bears testimony to this It may, at times, bear the mask of innocuousness. What is ostensible in a transfer order may not be the real object. Behind the mask of innocence may hide sweet revenge, a desire to get rid of an inconvenient employee or to keep at bay an activist or a stormy patrel When the Court is alerted, the court has necessarily to tear the veil of deceptive innocuousness and see what exactly motivated the transfer. This Court can and should in cases where it is satisfied that real object of transfer is not apparent, examine what exactly was behind the transfer." 6. Mr. Mukherjee also relied on another judgment of Kerala High Court in Dr. E T Kuriakose v. Government of Kerala & ors reported in 1979 (2) SLR page 508 in support of his connection that the Court is competent to interfere in n case of power to transfer is exercised for extraneous purpose under the garb of ostensible purpose of public interest. In this case there was a transfer of a doctor specialised in cornel transplantation to a non-practising post and it was held that no public interest was involved in the matter of transfer. In that case, the court directed the petitioner to file representation against the order of transfer and the government to dispose the representation ill accordance with law. Mr. Mukherjee also relied on a Division Bench judgment of Madras High Court in C Ramnathan v. Acting Zonal Manager, Food Corporation of India reported in 1980 (1) SLR page 309. In that case, the court directed the petitioner to file representation against the order of transfer and the government to dispose the representation ill accordance with law. Mr. Mukherjee also relied on a Division Bench judgment of Madras High Court in C Ramnathan v. Acting Zonal Manager, Food Corporation of India reported in 1980 (1) SLR page 309. In that case it was held that the power to transfer was adopted as an alternative for punishment which punishment would not be inflicted without going through the process as prescribed under Article 311 of the Constitution of India In that case, the order of transfer on the face of it was innocuous, but considering the facts and circumstances of the said case, the Division Bench of the Madras High Court held that was that a case where the order of transfer was passed in colourable exercise of power or an exercise of power surcharged with bad faith as irrelevant consideration motivated the passing of challenged order and instead of-taking disciplinary action against the writ petitioner therein the order of transfer was passed to circumvent the prescribed process In an action ordinarily undertaken against the government servant for his conduct. In that case, the guideline fixed for transfer was not also followed and there was no explanation whatsoever for deviation from the prescribed guidelines for such transfer. In the peculiar facts and circumstances of that case, the Division Bench set aside the order of transfer. Mr. Mukherjee also relied upon the judgment of the Supreme Court in Baldev Rai Chadha v. Union of India reported in 1981 SC page 70 in support of his contention that when an order of forced retirement is challenged and its validity depends on being supported by public interest, the State must disclose a material so that the court may be satisfied that the order was passed on materials which are sufficient to sustain the ground of public interest justifying the forced retirement of public servant. In that case it was also held that the Judge cannot substitute their judgment for that of administrator but they are not absolved from the minimal review well- settled in administrative law and founded on constitutional obligations The. Court was confined to an examination of the materials merely to see whether a rational mind was conceivably be satisfied that the compulsory retirement of the officer concerned is necessary in public interest. Court was confined to an examination of the materials merely to see whether a rational mind was conceivably be satisfied that the compulsory retirement of the officer concerned is necessary in public interest. Mr Mukherjee also relied on the judgment of the Supreme Court in the case of M/s Kasturilal v. State of Jammu & Kasmir reported in AIR 1980 SC 1992 and contended that every activity of the government must have public element in it and must therefore be informed by reason and guided by public interest. Mr Mukherjee also relied on the judgment of the Supreme Court in the case of Manager. Government Brar.ch Press & Anr v. B. D. Baliappa reported in AIR 1979 S 429 in support of his contention that even in a case of termination of temporary service of a government employee under the terms of contract of employment which provided that the service of the petitioner could be terminated without notice even in that case also the Supreme Court in the absence of any information indicating that the writ petitioner was marked off for discharge on the basis of an intelligible differentia having a reasonable nexus with the object of maintaining the efficiency and integrity of public service, held that the order of transfer of temporary service was violative of the provision of Articles 14 and 16 of the Constitution of India. Apart from the cases cited above, Mr. Mukherjee also relied on the cases of Sm.Pusnita Chatterjee v. State of West Bengal, reported in 1972 SLR 910 (Cal.) Sri N. N. Singh v. General Manager reported in 1973 (1) SLR 1153 (Cal.), Prem Praveen v. Union of India reported in 1973 (2) SLR 659 (Delhi) and G. R. Malinamani v. Commissioner Hubli reported In 1974(1) SLR 669, which lay down the following principles: (a) Though an order of transfer like any other administrative or executive order is passed invariably for administrative purposes Or in public interest and hence outside the purview of examination by the Courts of Law : if it is established that the order is for collateral purposes and hence mala fide, it cannot be sustained and it will be a fit case for Courts interference. (b) The Court is competent to interfere with an order of transfer and substitute its own judgment if order has been passed for other purpose in the garb of ostensible purposes of public interest, Court Can scrutinise the order though administrative, if mala fide and passed in colourable exercise of power even though it may be free from violation of any constitutional or statutory provision. (c) Court can interfere if transfer is violative of legal provision or is otherwise mala fide. Though the Government might state that the transfer was bona fide, that is not the end of the matter Government should placed full materials before court to determine whether order was bona fide or not. (d) The power vested in public body to transfer any official must be used honestly, bona fide and reasonably. It must be in the Interest of public purpose. 7. Mr. Tapas Chandra Roy, learned advocate appearing on behalf of the respondents, fairly conceded that the petitioner was regarded by all concerned with high esteem as one of the top most cardiologists in the country. But the petitioner belongs to a common cadre of West Bengal Medical Service and that transfer is one of the express conditions of the service of the petitioner under the relevant rules It was further contended that the State Government is the sale judge to decide how the petitioner's service could be better. utilised and that the petitioner cannot have any complaint in the matter nor the Court could enter into such question which are within the width and amplitude of the executive power of the State Government. Mr. Roy also contended that there was no sufficient pleading or particulars with regard to the allegations of mala fides in the writ petition. Mr. Roy relied on the observation made by the Supreme Court in M/s. Sukhbinder Pal Bipin Kumar v. State of Punjab reported In AIR 1982 SC page 65 at page 70 that "The Court would be justified in refusing to carry out investigation into allegations of mala fides, if necessary particulars of the charge making out a prima facie case are not given in the petition The burden lies very heavily on the person who alleges it. The petitioner who seeks to invalidate the impugned order of suspension, must establish the charge of bad faith or bias or misuse by the Government of its power". Mr. The petitioner who seeks to invalidate the impugned order of suspension, must establish the charge of bad faith or bias or misuse by the Government of its power". Mr. Roy further contended that there was no averment in the petition that the order of transfer was passed by way of punishment. Mr. Roy also contended that the petitioner entered into the service 22 yean baek and had not been transferred from I P.G.M.E. & R. for last 22 years whereas other persons in the same cadre had been transferred from one place to another and that there was instances where the professors who were taking Post graduate classes, had been transferred to colleges to take under graduate classes in medical courses. Such transfer has been made as a matter of policy decision taken by the State Government so that the other persons in the same cadre cannot makes any complaint on the ground of discrimination Mr. Roy also produced before this Court the original file relating to the said transfer From the file it appears that before the order of transfer was proposed by the Director, Health Service, the Health Minister was consulted and the petitioner was transferred from I P G.M E. & R. to N.R S Medical Collage to fill up the vacancy caused by the transfer of Dr, J. C Ghosh, Professor of Cardiology, N.R.S. Medical College to Medical College where then: was a vacancy. From the file it appears that. it was a chain transfer and 5 doctors have been transferred on the same date and the proposal of the Director, Health Service was duly approved by the Secretary of the Department, the Minister-in-Charge of the Department as well as the Chief Minister of the State of West Bengal and thereafter the formal orders of transfer were issued. It also appears that no allegation of mala fide was made against any of the persons whose signatures appear in the relevant file It appears that the proposal was made on 21st January and on the same date, the matter was placed before the Chief Minister and on the next date, the order of transfer was issued. The matter might have been dealt with an extreme speed, but taking action in such a speedy manner does not and cannot on the face of it indicate that there was mala fide or improper motive behind it. 8. The matter might have been dealt with an extreme speed, but taking action in such a speedy manner does not and cannot on the face of it indicate that there was mala fide or improper motive behind it. 8. Further, in my opinion though there is no provision for automatic release under any deeming provision and in normal course the petitioner should have been given reasonable time for handing over charge and/or taking over charge, such deemed release is a mere irregularity but the same does not and cannot vitiate the order of transfer. The principles laid down by the oases cited by Mr. Mukherjee and other case laws in this regard in short lay down that an Order 'of transfer is illegal and invalid if it is passed; a) for a collateral purpose in the garb of ostensible purpose of public interest or passed with improper motives or actuated with bias; b) if the transfer was intended or motivated to operate as a punishment; c) If it was passed in violation of any statutory rules or instructions; d) entails any penal consequences or reduces in rank or status; and - in such a case the Court can go behind the order of transfer for lilting the veil and to see what was the operative reasons for such transfer and that the Government should place full materials before the Court to determine for itself whether order was bona fide or not. It is true that when order of transfer is passed by way of punishment the Court can certainly declare it to be invalid. In this connection the reference may be made to the observation of Lord Denning MR. in the case of Merrick & ors. v. Nott Bower & Ors reported in (1964) 1 All E. R. page 717, at page 720 that "the range of punishment does not inc1ude transfer from one place to another. There is no power to transfer by way of punishment" 9. I am unable to accept the view of the Kerala High Court in the case reported in 1979(1) SLR 309 that the right to transfer an employee is a powerful weapon in the hands of the employer and sometimes it is more dangerous than the order of punishment as certainly it cannot be said dismissal or removal from service or reduction in rank is more dangerous than an order of transfer. But I respectfully agree with the view of the Kerala High Court that when the challenge is thrown though the order of transfer on the face of it is innocuous, the object of transfer was mala fide, certainly the court can interfere in the matter and can lift the veil. In the instant case, the file was produced and from the file nothing could be found out to show or suggest that there was any mala fide motive on the part of the respondents concerned in the matter. Regarding the observation made by the Supreme Court of India in the Case of E.P. Royappa (AIR 1974 SC 535) is no help to the petitioner inasmuch as nothing could be found out either from the records or from the pleadings that the order of transfer was motivated and/or was passed in colourable exercise of the power and/or on the extraneous ground of or consideration Admittedly, the petitioner has been transferred from the post of Head of Department of the Department of Cardiology from LP G.M E & R. to the post of the Head of Department of N.R S Medical College and as such there is no question of any reduction in rank in view of the fact that the powers and responsibilities of the post of a Head of the Department of Cardiology in N.R S Medical College are similar On the question of public interest though the petitioner relied on the judgment of the Supreme Court in Baldev Raj Chadha's case, but that was a case of compulsory retirement and that when the order of compulsory retirement was passed in public interest, the court is required to see whether it was passed in public interest or not and that it has been held that it is the duty of the State Government to produce the materials before the court to satisfy that the said premature retirement had been made in public interest and in that case also the court has a very limited power that the court can merely see whether a rational mind could conceivably be satisfied that compulsory retirement of the officer concerned was necessary in public interest. The concept of the public interest in the case of a compulsory retirement cannot be applied Into an order of transfer made by and under the conditions of service. The concept of the public interest in the case of a compulsory retirement cannot be applied Into an order of transfer made by and under the conditions of service. Now the question is whether in the facts and circumstances of the case, the transfer of the petitioner from I.G. P M.E & R to N.R.S. Medical Hospital was made In the exigency of public service or in the interest of public service and whether this could be decided by this court in view of the fact that the court would be reluctant to venture into the unchartered and unfamiliar field of administration and examine the correctness of an order of transfer after investigating whether it was passed in the exigency of public service or in the public interest. In the absence of any mala fide allegation with sufficient particulars in the writ petition, the government would ordinarily be the best judge to decide whether in the facts and circumstances of the case, the order of transfer was passed in public interest or not But where it appears to the court that an order of transfer was passed on extraneous or irrelevant factors or the order of transfer was mala fide or made in the colourable exercise of power or was a mere cloak for displacing a government servant from one post to other or was passed by way of punishment under the garb of transfer order allegedly passed in public interest, the Court could certainly interfere in the matter. Incidentally the petitioner was holding a non-practising post in I.G.P.M.E. & R. and that the petitioner had been transferred to a practising post. This is certainly to the advantage of the petitioner. The petitioner had not been transferred to a distant place and did not cause .any undue hardship or inconvenience. The petitioner only has been transferred to a different medical collage situated in the same city. In the facts and circumstances of the case, I am unable to hold from the materials on record that the order of transfer has been passed mala fide or with improper motives or were actuated with bias or that the order of transfer has been passed to circumvent any disciplinary proceeding and/or to victimise the petitioner by way of punishment or 'otherwise in any manner whatsoever. Accordingly, all the contentions raised by the petitioner fail. The writ application is dismissed. Accordingly, all the contentions raised by the petitioner fail. The writ application is dismissed. All interim orders are vacated. 10. On the prayer of the Learned Advocates for the petitioner let there by stay of the operation of the order for a period of ten days 4 application dismissed.