Gujarat HC Upholds Mass Transfer of Around 500 ESIC Doctors, sets aside CAT order
Gujarat High Court
Ahmedabad: Setting aside the earlier order of the Central Administrative Tribunal, the Gujarat High Court recently restored an order transferring nearly 500 doctors of Employees State Insurance Corporation (ESIC).
Earlier, the CAT had set aside the transfer order on the ground that the order violated DOPT guidelines laid down by the Office Memorandum dated 24.11.2022 which requires posting of spouses at/near to the posting station of each other in case one of the spouses is in Central Government service and the other is in State Government, subject to availability of vacancies.
The High Court noted that the transfer order dated 20.05.2023 was a mass transfer of 500 doctors of ESI corporation, after a transfer/posting policy for clinical posting of doctors in ESI Corporation was promulgated on 20.06.2022.
When this order was challenged before the Tribunal, an interim order was passed on 09.09.2024 to the effect that no coercive steps shall be taken against the applicant before the Tribunal.
After the CAT set aside the transfer order, ESIC challenged the order before the HC bench. The applicant doctor's counsel submitted that the doctor had been relieved on 29.08.2023 after the transfer order was issued on 20.05.2023. The interim order was passed by the Tribunal on 09.09.2024, much after the relieving of the petitioner.
The Court noted that the interim order continued till the disposal of the original application by the Tribunal, wherein the transfer order dated 20.05.2023 was set aside vide judgment and order dated 23.10.2024.
It was submitted that despite the transfer order being set aside and the stipulation in the Tribunal’s order to implement the order within a period of 60 days, the doctor was not reinstated. The Court noted that due to this, the doctor was not working since the date of his relieving pursuant to the transfer order dated 20.05.2023, which was on 29.08.2023.
"Moreover, for the fact that it was a mass transfer of 500 doctors, we do not find any merit in the order of the Tribunal in interfering with the transfer order only on the premise that the wife of the applicant / respondent was working in District Ahmedabad and hence his posting elsewhere would be contrary to the transfer Policy," further noted the Court.
"In a mass transfer of 500 doctors, no infirmity can be attached to the transfer order on the premise that the respondent / applicant has not been accomodated at the place near the place of posting of his spouse, which is purely in administrative exigencies," it further observed.
Even though the Court did not concur with the CAT order and set aside the same, it directed the doctor to join at the place of posting pursuant to the transfer order dated 20.05.2023 with immediate effect.
"However, after joining at the place of transfer, it would be open for the respondent to make an application for adjusting his posting at an appropriate place in light of paragraph ‘B (vii)’ of the Office Memorandum dated 24.11.2022 (DOPT Guidelines). Such request, if made, shall be duly dealt with by the petitioner subject to availability of vacancies, keeping in mind the guidelines that all efforts should be made to post spouses at nearest places, as far as possible," it clarified.
"The respondent would also be at liberty to move a proper application for the period of his non-working, i.e. from the date of relieving till the date of joining at the transferred place, only after submitting his joining at the place of transfer. On such application being filed by the respondent, the same shall also be dealt with sympathetically," the HC bench further mentioned.
"We, thus, provide that after joining, the respondent would be free to move application, which shall be dealt with at the earliest and in a positive manner. It is clarified that the factum of setting aside the order of the Tribunal herein shall not be taken as an opinion drawn by us to reject the request of the respondent to accommodate him at a convenient place near the place of posting of his wife. With the above observations and directions, the present petition stands disposed of," held the HC bench comprising Chief Justice Sunita Agarwal and Justice D.N.Ray.
To view the order, click on the link below:
https://medicaldialogues.in/pdf_upload/gujarat-hc-esic-297527.pdf
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