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2019 DIGILAW 914 (ALL)

Snigdha Sen v. State Of U. P.

2019-04-11

GOVIND MATHUR, SAURABH SHYAM SHAMSHERY

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JUDGMENT : Govind Mathur, C.J., Saurabh Shyam Shamshery, J. 1. In all the special appeals, order impugned is a common judgment and order dated 13.2.2019, whereby the learned Single Judge has dismissed the writ petitions filed by appellants herein. 2. Challenge before the learned Single Judge were orders even dated 19.9.2018 passed by Principal Secretary of Medical Department of State of Uttar Pradesh, whereby the appellants who were working as Doctors in different Medical Colleges of the State were transferred to four newly established Medical Colleges at District-Saharanpur, Banda, Azamgarh and Jalaun of State of Uttar Pradesh. 3. In all the said transfer orders, administrative exigency was to abide by the undertaking given on behalf of State of Uttar Pradesh before the Hon'ble Supreme Court to rectify remaining deficiencies pointed out by Medical Council of India (MCI) in regard to these newly established Colleges, which also includes deficiency of Doctors at Colleges to ensure that academic session of MBBS for the year 2018-19 shall commence. Relevant part of the order dated 18.6.2018 passed by Hon'ble Supreme Court in Writ Petition (Civil) No.643 of 2018 is mentioned herein after. "An affidavit of undertaking has been filed by both the Chief Secretary of the State of U.P. and the Principal Secretary, Department of Medical Education, Government of Uttar Pradesh before this Court, stating that a comprehensive report has been prepared regarding the deficiencies which have been pointed out by the MCI, and the date and time within which the same would be rectified. The Principal Secretary, Department of Medical Education, Government of Uttar Pradesh and the State Government are committed to take the measures and steps to rectify the remaining deficiencies as soon as possible. We hereby direct that in view of the undertakings submitted by the Principal Secretary of each of the three States, permission is granted to the aforesaid Government Medical Colleges for admission to the MBBS course for the current academic year 2018-19. The seats in the aforesaid Government Medical Colleges will be included in the seat matrix, for which counseling is scheduled to take place on 19th June, 2018.” 4. Undisputedly all the appellants before this Court are working as Doctors in one of the Government Medical Colleges of the State, for last many years and as per service conditions, transfers could be made. 5. Undisputedly all the appellants before this Court are working as Doctors in one of the Government Medical Colleges of the State, for last many years and as per service conditions, transfers could be made. 5. We have heard counsels representing appellants in Special Appeals and learned Additional Advocate General appearing on behalf of the State of Uttar Pradesh and scanned the record. 6. The arguments raised on behalf of appellants could be summarised as under- (i) Exercise of transfer in the present is in colourable exercise of administrative power coupled with arbitrariness and malice. (ii) The administrative exigency as shown in the orders of transfer is not correct as appellants cannot be considered as Doctor of the new hospital for the purpose of Regulations of Medical Council of India, as they had already been counted for the Hospitals, where they were working. (iii) Policy of transfer has been ignored. (iv) Appellants have been transferred as new incumbents have refused to join at new hospitals and now they are directed to join in places of appellants, therefore, appellants have been put in adverse positions despite being senior to new incumbents. (v) Individual grievances of the appellants such as small children in family, both husband and wife working as Government Doctors at one place, education of children etc., have not been considered at all. (vi) Judgment passed by learned Single Judge is not correct. 7. Per contra, learned Additional Advocate General appearing on behalf of State refuted all the arguments raised by the appellants by raising following submissions- (a) Appellants being in transferable service cannot oppose transfer orders, which is passed in administrative exigencies in order to comply undertaking given on behalf of State of U.P. before Supreme Court, therefore, there is no colourable exercise of administrative power and appellants have failed to show any basis of alleged malafide and arbitrariness. (b) Co-ordinate bench of this court has already dismissed a special appeal arising out of similar transfer order. (c) Submission about the Regulations of Medical Council of India about counting or not counting, appellants being Doctor of transferred place (Medical College) is absolutely misplaced. (d) Appellants being senior and experienced doctors, their services are more desirous at new hospitals. 8. Considered the submissions and perused the record. (c) Submission about the Regulations of Medical Council of India about counting or not counting, appellants being Doctor of transferred place (Medical College) is absolutely misplaced. (d) Appellants being senior and experienced doctors, their services are more desirous at new hospitals. 8. Considered the submissions and perused the record. Our considered view is as follows: (i) Being in transferable service, transfer is an incidence of service and the State authorities are in the best position to assess necessities of administrative requirement of the situation. (ii) It is well settled that courts must not ordinarily interfere in administrative matters such as order for transfer and judicial restraint should be maintained. (iii) Counsels for the appellants have miserably failed to point out any malafides in passing of impugned transfer orders. Therefore, the submissions on this ground is rejected outrightly. (iv) Argument on the method of filling up of resultant vacancies created due to transfer of appellants does not support their case and in this regard, we are in agreement with the learned Single Judge who by its impugned order has held that: "While the issue of resultant vacancies being created, faculty positions in other medical colleges breaching the stipulations fixed by the Medical Council of India, contractual engagements being made to overcome the resultant shortages and the measures adopted not being wholesome may have merited examination in a larger context, the Court finds itself unable to either initiate a further enquiry in this respect or tread this line further conscious of the fact that it is principally called upon to consider the validity of an order of transfer. The larger issues which are canvassed by the learned Senior Counsels in this batch of writ petitions, do not in the considered view of this Court, touch upon the validity or otherwise of the orders of transfer. Bearing in mind the contours of the reliefs claimed in these petitions, it is manifest that an enquiry into these aspects is uncalled for and unwarranted.” (v) The counsel appearing on behalf of the appellants have failed to show any material in order to support their submission that respondents have passed the impugned orders of transfer in colourable exercise of their executive powers. The appellants have failed to show that the impugned act is illegal, but has been given the guise of legality, whereas the respondents have been able to show that the impugned transfers have been made for the purpose of administrative exigencies, therefore, this argument of the appellants fails. (vi) Supreme Court has held in the case of State of Haryana & Ors. Vs. Kashmir Singh & Anr, reported in 2010 (13) SCC 306 in para 12 that: "12.Transfer ordinarily is an incidence of service, and the Courts should be very reluctant to interfere in transfer orders as long as they are not clearly illegal. In particular, we are of the opinion that transfer and postings of policemen must be left in the discretion of the concerned State authorities which are in the best position to assess the necessities of the administrative requirements of the situation. The concerned administrative authorities may be of the opinion that more policemen are required in any particular district and/or another range than in another, depending upon their assessment of the law and order situation and/or other considerations. These are purely administrative matters, and it is well-settled that Courts must not ordinarily interfere in administrative matters and should maintain judicial restraint vide Tata Cellular Vs. Union of India- AIR 1996 SC 11 ." (Emphasis supplied) (vii) Similarly, in Rajendra Singh & Ors. Vs. State of Uttar Pradesh & Ors, reported in 2009 (15) SCC 178 , has held in paragraph 8 that- "8. A Government Servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the Government Servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires [see State of U.P. Vs. Gobardhan Lal; (2004) 11 SCC 402 ]." (Emphasis supplied) (viii) Supreme Court in B.Varadha Rao Vs. No Government can function if the Government Servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires [see State of U.P. Vs. Gobardhan Lal; (2004) 11 SCC 402 ]." (Emphasis supplied) (viii) Supreme Court in B.Varadha Rao Vs. State of Karnataka & Ors, reported in 1986 (4) SCC 131 , has held in paragraph 6 that- “6. One cannot but deprecate that frequent, unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a Government servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. It therefore follows that the policy of transfer should be reasonable and fair and should apply to everybody equally. But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the Government is not conductive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that the position of Class III and Class IV employees stand on a different footing. We trust that the Government will keep these considerations in view while making an order of transfer.” (Emphasis supplied) 9. Considering the above discussion and in view of the law laid down in the judgments referred in preceding paragraphs and as counsels for the appellants have failed to substantiate their arguments on colourable exercise of executive power, malafides and arbitrariness, in regard to impugned transfer orders and further the appellants being Doctors in Government Colleges/Hospitals can't stay at one place of posting as a matter of right, we are of the considered view that the impugned judgment does not suffer from any illegality. 10. Accordingly, the present appeals are dismissed.