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2016 DIGILAW 1022 (GAU)

Rajib Kr. Bhattacharyya v. State of Assam

2016-11-21

MANOJIT BHUYAN

body2016
JUDGMENT AND ORDER (CAV) Primarily, an order of transfer is the subject-matter of challenge in the present writ petition. Facts to be noticed are that vide Notification dated 02.01.2016 and in pursuance of recommendation made by the Selection Board, the petitioner was appointed as Superintendent and posted at Jorhat Medical College Hospital, Jorhat. By subsequent Notification dated 21.09.2016, he was transferred and posted at Assam Medical College, Dibrugarh against the vacant post at T.B. & Chest Department and allowed to work as Professor of Anesthesiology Department. On the same date, another Notification was issued, whereby the Respondent No.5, who is an Assistant Professor of Physiology Department, Jorhat Medical College Hospital, Jorhat was allowed to hold the current charge of Superintendent of Jorhat Medical College Hospital. These two Notifications are assailed in the present writ petition. 2. Mr. A. Narzary, learned counsel representing the petitioner submits that the transfer order is violative of the provisions under the Assam Medical Education Service Rules, 2008 (hereinafter called Rules of 2008). The pin-pointed challenge is that by selection from the post of Professor he was appointed as Superintendent and being now relegated to the post of Professor, the same operates as a demotion from his substantive post. Referring to sub-rule (2) of Rule 12 of the Rules of 2008, it is contended that only those members of the service holding the post of Professor and having completed total 10(ten) years of service after Post Graduate Degree and with a recognized Degree in Hospital Administration are made eligible for the post of Medical Superintendent. The petitioner having been so appointed by selection and on recommendation of the Selection Board, therefore, could not have been transferred and posted in the rank of Professor. Mr. Narzary by making reference to the affidavit-in-opposition filed by the State respondents submits that, in fact, the transfer order was the fall-out of complaints made against the petitioner in his capacity as Superintendent of Jorhat Medical College Hospital. According to the petitioner, the allegations of harassment meted out to two lady staff, his lack of interest in taking care of the patients, allotment of car parking business in front of the Casualty Ward to a local firm without prior approval of the higher authorities and without following due procedure for such allotment, his inability to manage Ward Boys and Nursing Staff for patient care, are all unfounded. According to the petitioner, the transfer order was neither issued in public interest nor in exigency of service but on baseless allegations of inefficiency, unsatisfactory performance and misbehaviour. That being so, it is contended that the impugned transfer order was issued as a punitive measure. 3. Challenge to the second Notification of like date i.e. 21.09.2016 is made on grounds that the Respondent No.5 being an Associate Professor and not having undergone any selection could not have been allowed to hold the current charge of Superintendent of Jorhat Medical College Hospital, Jorhat. Contention made is that the Notification in favour of the Respondent No.5 have been issued with mala fide intention and for achieving collateral gain. 4. Per contra, Mr. D. Saikia, learned Addl. Advocate General, Assam representing the State respondents submits that in the absence of any element of arbitrariness, mala fide or violation of Rules, the order of transfer does not warrant interference of this Court. He submits that the official status, career prospects viz seniority, pay scale and secured emoluments not being adversely affected, the order of transfer is not vitiated. In this respect, Mr. Saikia makes reference to the Rules of 2008, more particularly to Rule 3 (1) (iv) and Rule 3 (2) thereof. Submission made is that Superintendents of Medical College Hospitals as well as Professors of the Colleges are both categorized under Class-(I) (Senior Grade) cadre and the existing members of the service working in any of the colleges being constituted as a Joint Cadre are eligible for inter-college transfers and promotions. In addition, reference is also made to Rule 3(3) (ii) of the Rules of 1968, to say that notwithstanding the formation of joint, separate and exclusive cadres, the Government may under special circumstances as may appear to it to be necessary, transfer any person from any cadre of any college to any other cadre/college against a vacant post for such period as is necessary. According to Mr. Saikia, the transfer of the petitioner was within the same cadre and, as such, the stand of the petitioner as having been demoted from his substantive post is altogether fallacious and misconceived. 5. The further contention of Mr. Saikia is that the petitioner was transferred on complaints of indecent behaviour, unsatisfactory performance etc. Action taken is bona fide and in accordance with law. 5. The further contention of Mr. Saikia is that the petitioner was transferred on complaints of indecent behaviour, unsatisfactory performance etc. Action taken is bona fide and in accordance with law. It is submitted that there can be no fetters on the Department from enforcing discipline, decency and decorum in public service. In this respect, utmost latitude should be left with the Department concerned. In the instant case, the transfer order having been issued to ensure smooth functioning of the administration in view of the nature of complaints made against the petitioner, the same do not call for interference. In the same breath, Mr. Saikia contends that because of the transfer order the petitioner has not been visited with any penal consequences. As on date, no disciplinary proceedings have been initiated against the petitioner. 6. As regards the other Notification issued in favour of the Respondent No.5, Mr. Saikia submits that the same has been made as a stop-gap arrangement until posting of a regular Superintendent in the said College. He submits that the Notification itself clearly shows that the Respondent No.5 has been allowed to hold current charge of Superintendent and not as a regular Superintendent. Mr. Saikia also submits from instructions that posting of a regular Superintendent at Jorhat Medical College Hospital, Jorhat in accordance with the Rules of 2008 is on the cards and would be completed within a short span of time. 7. Mr. Saikia places reliance in the case of Union of India v. Janardhan Debanath, reported in (2004) 4 SCC 245 for the proposition that for the purpose of effecting a transfer what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports/complaints without the necessity of holding an elaborate enquiry as regards any misbehaviour or conduct unbecoming of an employee. Reliance is also placed in the case of Mozibur Rahman v. State of Assam, reported in 2004 (2) GLT 421 for the same proposition that the action taken to transfer as a measure of maintaining a healthy atmosphere in the institution cannot be termed as an illegal or arbitrary exercise of power. Merely because the authority did not proceed against the petitioner by way of departmental proceeding, it cannot be said that on the alleged misconduct the authority is debarred from taking resort to the action of transferring the petitioner to another institution. The gist of Mr. Merely because the authority did not proceed against the petitioner by way of departmental proceeding, it cannot be said that on the alleged misconduct the authority is debarred from taking resort to the action of transferring the petitioner to another institution. The gist of Mr. Saikia’s argument is that the order of transfer not being hit by any of the provisions under the Rules of 2008 and there being a situation calling for immediate enforcement of discipline, decency and decorum in public service, the challenge made in the writ petition have no legs to stand on and requires to be dismissed in limine. 8. I have heard the learned counsel for the parties and have perused the materials on record. First and foremost the challenge made to the Notification issued in favour of the Respondent No.5 is not gone into having regard to the submissions made by Mr. Saikia as to the transient nature of the order which had been made only as a stop-gap arrangement. 9. It is too well settled that the power to transfer remains within the province of the Employer. The Court ordinarily should not interfere unless the same is vitiated by mala fides, arbitrariness or made in violation of statutory provisions. Apparently, mala fide has not been alleged by impleading any State officials by name. In so far as the statutory rules are concerned, the transfer order do not militate against any of the provisions under the Rules of 2008. Rather, Rule 3 of the Rules of 2008 shows that the post of Superintendent of Medical College Hospitals and Professors of the colleges belong to the same cadre and both are categorized under Class-(I) (Senior Grade). Rule 3 also permits inter-college transfers and promotions amongst Joint Cadre as well as the power to transfer from any cadre of any college to any other cadre/college against a vacant post under special circumstances. No challenge having been made to the provisions of the said Rules, the transfer of the petitioner from the post of Superintendent of Jorhat Medical College Hospital to the vacant post of Professor of Anesthesiology of T.B. & Chest Department of Assam Medical College, Dibrugarh can, under no circumstances, be termed as bringing him down to a lower post by way of transfer. In the case of State of U.P. v. Gobardhan Lal, reported in (2004) 11 SCC 402 , the Apex Court held that as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments, an order of transfer do not stand vitiated. To reiterate, Rule 3 of the Rules of 2008 puts both the posts under the same cadre. It is not the case of the petitioner that having been transferred out from the post of Superintendent, he is visited by adverse service prospects. That being the position, no case is made out warranting any interference on ground that the transfer order had been made in violation of statutory provisions. 10. Arbitrariness is alleged on grounds that the very basis of the transfer order i.e. the imputations on his inefficiency and misbehaviour being non-existent, recourse to the impugned action is illegal and not sustainable in law. An answer to this stand of the petitioner can be had from the case of Union of India v. Janardhan Debanath (supra). Transfers unless it involves any adverse impact on the status, service prospects financially or visits the person concerned with any penal consequences, is not required to be subjected to the standard of scrutiny as in the case of dismissal, discharge, reversion or termination. Utmost latitude should be left with the Department concerned to enforce discipline, decency and decorum in public service, which are imperative to maintain quality of public service and to ensure smooth functioning of the administration. A prima facie satisfaction on the complaints of misbehaviour is what is all needed for the Employer to take appropriate action on exigencies of administration to enforce decorum and ensure probity in public service. Statements made in the affidavit-in-opposition goes to show that on the complaint received from the Member of Parliament of No.12 Jorhat Lok Sabha Constituency, the departmental Minister had directed the Commissioner & Secretary, Department of Health to look into the matter and take necessary remedial steps to overcome the immediate problems. On a prima-facie satisfaction a decision was taken was for transferring the petitioner out of Jorhat Medical College Hospital, Jorhat in order to maintain proper academic and administrative atmosphere of the Medical Institution. On a prima-facie satisfaction a decision was taken was for transferring the petitioner out of Jorhat Medical College Hospital, Jorhat in order to maintain proper academic and administrative atmosphere of the Medical Institution. This action cannot be labelled as an arbitrary action on the part of the State respondents for transferring the petitioner from Jorhat Medical College Hospital, Jorhat to Assam Medical College, Dibrugarh in the same capacity as Class-(I) (Senior Grade) Officer. 11. The discussions and finding above leads to the inevitable conclusion that no case is made out by the petitioner for making interference in the transfer order dated 21.09.2016 within the well recognized parameters for testing the legality and validity of a transfer order. This Court finds that the writ petition being devoid of merits, is liable to be dismissed, which is accordingly done. Before parting with the case, a direction is also made to the State respondents to take urgent steps for placing a member of the service holding the post of Professor and eligible under the provisions of the Rules of 2008 to discharge duties as the Superintendent of Jorhat Medical College Hospital, Jorhat. 12. Resultantly, this writ petition fails. Interim order passed earlier stands vacated/recalled. There shall be no order as to costs.