Delhi High Court
Dr. A.K. Bhardwaj vs Union Of India & Ors. on 29 July, 2009
Author: A. K. Pathak
* HIGH COURT OF DELHI: NEW DELHI
+ Writ Petition (Civil) No. 519/2009
Judgment reserved on: July 24, 2009
% Judgment delivered on: July 29, 2009
Dr. A.K. Bhardwaj ..... Petitioner
Through: Mr. A.K. Bhardwaj, with
Ms. Jagriti Singh, Advocates
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. A.S. Chandhiok, ASG with
Mr. Anil Gautam, Adv. and Mr. Ritesh
Kumar, Adv.
Coram:
HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE A.K. PATHAK
1. Whether the Reporters of local papers may Yes
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
A.K. PATHAK, J.
1. Petitioner was appointed by the Respondent as Medical
Officer. He was posted at Rural Health Training Centre, New
Delhi on 3rd July, 1986. Subsequently, vide order dated 20 th
June, 1997 of Respondent he was transferred to Dr. Ram
Manohar Lohia Hospital, where he joined his duties on 15th July,
1997, as Medical Officer. In due course he assumed charge of
Chief Medical Officer.
2. Vide order dated 7th October, 2008 Petitioner was
transferred from Dr. Ram Manohar Lohia Hospital to Government
of National Capital Territory of Delhi (GNCTD) in public interest.
Vide order dated 14th October, 2008 he was relieved of his duties
from Dr.Ram Manohar Lohia Hospital with immediate effect to
join GNCTD.
3. Aggrieved by his transfer Petitioner filed an Original
Application bearing OA No. 2477/2008 before the Central
Administrative Tribunal, Principal Bench, New Delhi (for short
referred to as "Tribunal") alleging therein that his transfer order
was passed with malafide intention and be quashed being
punitive. In the Central Health Services (CHS), there were two
categories of doctors i.e. (a) regularly appointed doctors (b)
doctors whose services had been regularized. Petitioner belongs
to latter category. On account of disputes between the
aforementioned different categories of doctors, Petitioner was
transferred. As per the Petitioner transfer was arbitrary and there
was use of colourable exercise of power by the Respondent.
Transfer was punitive and stigmatic. Petitioner's transfer would
affect his promotion prospects. Transfer order was passed by the
incompetent authority.
4. Respondent refuted above allegations. As per the
Respondent transfer order was passed in administrative
exigencies and public interest. Petitioner had been misbehaving
with subordinate staff as well as junior and senior doctors
including Medical Superintendent because of which atmosphere
in the hospital was vitiated. Presence of Petitioner in the hospital
was not in public interest. Transfer order was issued by the
Under Secretary with the approval of competent authority and
was having legal force.
5. Vide order dated 6th January, 2009 Tribunal dismissed the
OA. Aggrieved by this order Petitioner has filed this writ petition
praying threin that the order dated 6th January, 2009 passed by
the Tribunal as well as the transfer order dated 7 th October, 2008
be quashed.
6. On the basis of material produced before it by the parties to
the lis, Tribunal held that the Petitioner was transferred in public
interest. Report of Medical Superintendent revealed that
Petitioner had been misbehaving with senior and junior doctors
and departmental action was contemplated. In absence of proper
and comfortable environment in the hospital on account of
disharmony between the doctors, it is the patient who suffers.
Tribunal was also of the view that Central Health Service was a
well knit cadre of doctors, therefore, seniority of the Petitioner
would not suffer due to transfer. Tribunal also held that since
order was issued by the Under Secretary with the approval of
competent authority it was proper.
7. We have heard learned counsel for the Petitioner and the
learned A.S.G. for the Respondent and we do not find any reason
to interfere with the impugned order passed by the Tribunal. In
the facts of this case order passed by the Tribunal is not found
faulted. We do not find any force in the contention of learned
counsel for the Petitioner that the transfer order is liable to be
quashed as it has been issued by the Under Secretary who is not
the competent authority of Petitioner. It has been categorically
mentioned in the transfer order that it has been issued with the
approval of competent authority. In our view transfer order has
been passed by the competent authority and is enforceable.
8. We are also of the view that transfer order has been issued
for administrative reasons and in public interest. As per report of
the Medical Superintendent, Petitioner had been misbehaving not
only with his colleagues but also with the subordinate staff. He
even misbehaved with the Medical Superintendent. Respondents
have now decided to hold a departmental enquiry and have even
issued a charge-sheet dated 22nd April, 2009. Accordingly, in our
view, Tribunal has rightly held that if atmosphere in the hospital
is vitiated the casualty will be the patients. We are also of the
view that transfer order has not been issued with malafide reason
or to victimise the Petitioner.
9. Learned counsel for the petitioner has placed reliance on
judgments titled Ramadhar Pandey Vs.State of U.P. & Ors.
Reported in 1993 Supp (3) Supreme Court Cases 35, and
Arvind Dattatraya Dhande Vs. State of Maharashtra & Ors.
reported in (1997) 6 Supreme Court Cases 169 to buttress his
arguments that the transfer order is loaded with malafides and is
punitive in nature. We have perused the above judgments and
find that the same are in different facts. In our view these
judgments are not applicable to the facts of the present case. In
Arvind Dattatraya Dhande's case (supra) the concerned officer
had conducted a raid at the business premises of an influential
businessman and had even got registered a criminal case against
him for indulging in adulteration of toddy thereby endangering
the lives of consumers. The businessman lodged a complaint with
the Minister for District as well as State Minister for Excise. By
exercising political influential he got the officer transferred. In
these facts Supreme Court held that transfer was not in public
interest and was done in order to victimise an honest officer. In
Ramadhar Pandey's case (Supra) the issue involved was intra
cadre transfer of an officer. The facts of this case are totally
different. We have already noted that presence of the Petitioner
in the hospital was vitiating the atmosphere and for this reason it
was thought fit to transfer him in some other hospital in Delhi.
10. We are of the view that Petitioner has failed to show that his
transfer order is loaded with malafides and has been passed in
order to victimise him. Petitioner is a member of Central Health
Service and his post is transferrable anywhere in India or abroad
in terms of notification No.GSR 460 (E) dated 8th October, 1996 of
Ministry of Health and Family Welfare. In our view, transfer of
an employee is not only an incidence inherent in terms of his
appointment but is also implicit as an essential condition of
service in absence of any specific indication to the contra in the
law governing the service condition. A Government servant
holding a transferrable post has no vested right to remain posted
at one place or the other as per his choice. Transfer order issued
by a Competent Authority does not violate any of his legal rights.
It is well settled that a transfer order has not to be interfered with
unless the same is vitiated by malafides and is in violation of any
statutory provision. In this case the petitioner was holding a
transferrable post. Accordingly, action of the respondent in
transferring the petitioner cannot be faulted.
11. In the facts of the present case we are of the view that
transfer order of the petitioner has been passed for
administrative reasons and by no stretch of imagination it can
be termed as an arbitrary or vitiated by malafide or infraction.
12. We accordingly, dismiss the writ petition.
A.K. PATHAK, J
MADAN B. LOKUR, J
July 29, 2009
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