CEENTRAL ADMINISTRATIVE TRIBUNAL CALCUTTA BENCH .7 (CIRCUIT AT PORT BLAIR)
N.OA351/1186/2o17 Date of order IV
Present: Hon'ble Mr. S.K.Pattnaik, Judicial Member! Hon'ble Dr. Nandita Chatterjee, Administrative Member
SMT. AZIZ FATMA W/o Shri Imdad Mi R/o Port Blair, A&N Islands.
APPLICANT
VERSUS
Union of India, through The Secretary, Ministry of Home Affairs, New Delhi- 110001.
The Chief Secretary, Secretariat, Port Blair-744101.
The Secretary (Education) Secretariat, Port Blair- 744 10 1, I The Director of Education Directorate of Education, A&N Administration, VIP Road, Port Blair-7441O1.
The Deputy Director of Education (Pen.) Directorate of Education, A&N Administration, VIP Road, Port Blair - 744101.
6. The Director of Health Services, Directorate of Health Services, A&N Administration, Port Blair - 744 10 1.
.RESPONDENTS. /1 2. OA.351/1 186/2017 / For the applicant Mr.R.George, counsel I For the respondeits Mr.S.C.Misra, counsel Mr,N.A.Khan, counsel 7
ORDER
Per Dr. Nandjta Chatterjee, Administrative Member
Aggrieved at the transfer order dated 17.6.2016 from SSS Port
Mout to SSS Havelok and the speaking order dated 12.6.2017 of the
respondent authorities, the instant application has been filed seeking the following relief
a mandatorr order directing the respondent authorities to quash/rescind/set aside/recall and cancel the transfer order dated 17.6,2016 from SSS Port Mout to SSS Havèlok; a mandatory order directing the respondent authorities to quash/ rescind/ set aside/recall and cancel the transfer order dated 12.6.2017 issued form the office of the respondent No.4 and duly signed by the respondent No.5; an order directing the respondent authorities to certiiSr and transmit the records relating to the instant proceeding so that the conscionable justice; any other appropriate relief or reliefs, as Your Lordship may deem fit and propei.
Heard id. counsel for both parties, examined the plàadings and
documents on record.
The case of the: applicant, as submitted by her ld. counsel, is that
the applicant is & Post Graduate Teacher of Chemistry under the
directorate of Education of the respondent authorities.
That, applidant's husband is suffering critically from kidney
ailments leading to kidney transplantation in the year 2000 and that,
any person who has undergone kidney transplantation requires
continuous attention.
That, the applicant was transferred from SSS Port Mout to SSS
Havelok despite her request for considering her case on the ground of her
husband's ailments and that, the respondent authorities, failed to
consider her request causing the applicant to approach the Tribunal on
two earlier occasions whereby the Tribunal had disposed of her
applicatioris with certain directions.
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ft 3. OA.351/1186/2017
That, despite the Tribunal's directions, the respondent authorities
had not constituted the Medical Board as was required and instead,
VA respondent No.4 rejected the claim of the applicant by an order dated
12.6.2017 without entering into merit of the matter.
Being aggrieved, the applicant has filed the instant Original
Application.
The grounds advanced by the applicant in her support are - (a)
that the applicant's husband is in a critical condition and his life being
endangered, consequently requires continuous care and protection of the
applicant. (b) That, the A&N Administration had framed guidelines with
regard to transfer policy vide notification dated 5.12.2014 and has
violated the provisions of the same. (c) That, although, there was no rule
in transfer policy to send a patient every year to a medical Board, the
authorities concerned had directed the husband of the applicant to
appear before the Medical Board regularly. (d) That the certificate of
Medical Board dated 14.6.20 17 was against the professional ethics.
The respondents have not filed any written statement but their oral
arguments were heard. According to the ld. counsel for the respondents,
the respondents have acted in accordance with their transfer policy
guidelines and that the respondent authorities have carried out every
instruction of the Tribunal issued in the earlier rounds of litigation. The
ld. counsel for respondents further argued that the speaking order is
- comprehensive as well as reasoned and speaks for itself wherein the
contention of the respondents have been adequately expressed.
Having heard the arguments and counter arguments of both the
applicant and the respondents, the issue before us, is to adjudicate as to
whether the speaking order of the respondents dated 12.6.2017
(Annexure A/24 to the OA) is liable to be set aside.
The transfer policy of the. -respondents as notified on 5.12.2014
(Annexure A/6 to the OA) is the principal document to be referred to in
this regard. As such the guidelines provide the respondents with the f t 4. OA,351/1186/2017
., norms of transfer. The guidelines, as extracted from the said notification / /1 are as below: / "GWDELINES ARE :-
All the Schools located in UT of A&N Islands are divided into Zones as under: (1) Zone -1: Schools located in Great Nicobar, Little Nicobar, Nancowry, Katchal including Rut Land, Banboonallah (Rut Land). (a) Zone - 1(A) : Schools located in Afra Bay, Macachua Pulolo, Pulopanja, East Bay Katchal, Dering, Kuitasuk, Dugong Cree!ç Strait Island, Macarthy Valley, Foster Valley, Cut be rt Bay, Loukinallah-IJJ, Loukinallah-1V, Haratikr4 Badadabla, Paloon Chuglumgum, Goojinallah, Budhanallah, Birsanagar, Sippitikri, Hanspuri, Borang, Nisthintapur, Jaganathdera, Narayan Tikri, Burmachad, Band hanallah, Krishnanagar-1, Krishnanagar-Il, Cop alnagar-lI, Humberchad, Sagardeep, Ganesh Nagar-I, Ganesh Nagar-fi, Shantinagar, Gandhinagar-l1, Paschim Sagar-H, Chipoh, Garjantikri, Zone - H: Schools located in Car Nicobar including very hard areas of South Andaman viz. Shoal Bay-I 9, Little Andaman and Long Island. Zone-HI: Schools located in North Andaman. Zone - lv : Schools located in area from Baratang to Mayabunder including Neil & Havelock. Zone - V: Schools located in South Andaman and Wimberly Gunj. if) Zone - VI: Schools located in Municipal Area of Port Blair. (ii) Normally, all Teaching and Non-Teaching Staff during their service career are required to render minimum service in each zone as given below: Zone - I 02 years Zone - 1(A) 01 year Zone - H 02 years! 03 years as the case may be Zone -IH&IV 10 years Zone - V&VI 15 years (iii)Normally the minimum continuous tenure in each of the aforesaid Zones shall be as follows: Zone - 1 02 years Zone - 1(A) 01 year Zone - H Car Nicobar and Shoal Bay-i 9 with continuous posting of tenure of two years. For Little Andaman and Long Island with continuous posting tenure of three years. Zone - Ill 04 years Zone -N 04year. Zone - V 05 years Zone-ill 05 years However, teachers who have sewed in Zone 1(A) for one year will be exempted from serving in Zone L"
In the context of medical ailments, clause (xi) of the guidelines
states as follows
'The request of the te&hers suffering from acute medical problems to stay in a particular area shall be decided by the department on case to case basis, provided such cases are affirmed by the Medical Board."
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5. OA.351/1186/2017 /14 The case of the applicant as derived 1mm the pleadings and as /1 submitted during the hearing, is that the spouse of the applicant had
undergone kidney transplantation on 28.3.2000 and (as there appears to
be no other records in the pleadings to the contrary), the: applicant was
posted at Port Blair till 26.6.2012. The applicant was direqted vide Order
No. 2672 to be posted at SSS Mayabunder (Annexure A/2 to the OA)
upon which the applicant's• husband thereafter appeared before a
Medical Board and the opinion of the Medical Board stated that he
required regular and close monitoring and his problem of chronic
rejection warranted his stay at Port Blair. Another order followed on
6.7.2013 vide which the applicant was once again transferred from Port
Blair to Mayabunder. The said order was however, reversed vide
respondents' order dated 21.11.2613 in which she was transferred and
posted to Govt. Model Sr. Secondary School, Port Blair: on medical ground. Hence the Medical Board's report dated 23.7.2012 and that
attached with the respondents' order dated 21.11.2013 (Annexure A/i
colly)clearly establishes the fact that the respondent authorities
appreciated the severity of the health conditions of the applicant's spouse
as certified by the 'Medical Board and permitted the applicant to continue
at Port Blair thereafter.
On 15.4.20.16, all the officials working under Directorate of
Education, A&N Administration who wanted to avail of retention due to
health reasons, were asked to appear before the specially constituted
Medical Board (Annexure A/2 to the OA). The Medical Board reported on
19.4.20 16 that the patient is capable of "taking care of himself"
(Annexure Al 10 to the OA) and consequently, a transfer order was
issued on 17.6.2016 whereby the applicant was transferred to SSS
Havelok. The applicant immediately approached the Tribunal in OA
69/2016 which was disposed of on 19.7.2016 directing the respondent
No.3 to sympathetically consider the prayer of the applicant within a
month by passing a reasoned and speaking order in the light of the I _
M 6. OA.35111186/2017 certificate issued in 2012. The Tribunal also gave the applicant liberty to
join the post of transfer or to be on leave. In compliance, the respondent / authorities, thereafter, passed a speaking order dated 2.11.2016
(Annexure A/ 10 to the OA), whereby it was shown that, in violation to
the transfer policy, the applicant has spent 9 years 4 months in the
Municipal area of Port Blair, and outside the Municipal area, South
Andaman for 7 years 7 months but in Zone IV for a period of 2.09 years
only in her entire service career, and as the transfer guidelines provided
that an employee can serve for a maximum of 15 years in Zone V and
Zone VI combined, the applicant has over stayed the limit of such tenure
and that her transfer was justified in accordance with the policy
guidelines. The speaking order went on to say that the applicant was
allowed to continue in Zone V & VI based on the Medical Board
certification which referred to the severity of her spouse's medical
condition but now that the Medical Board has certified on 19,4,20 16 that
he is capable of taking care of himself, the applicant was bound to be
transferred.
Upon the rejection of her prayer for retention by the respondent ,
authorities, the applicant preferred a second round of litigation in OA
144/ 2016 which was disposed of on 30.3.2017 (Annexure A/12 to the
OA) vide which the concerned respondents were directed to consider the
applicant's representation for c nstitution of a second Medical Board and
in case the applicant's grievance was found to be genuine, the
respondents were to extend benefits to the applicant. The applicant
preferred such representation, but at the same time reported for duty at
Govt. Sr. Secondary. School, Havelok on 28.4.2017 in pursuance of the
transfer order dated 12.6.2017.
Thereafter, after a series of consequent processes, the Medical
Board formed at the G.B.Pant Hospital, Port Blair, issued a certificate
dated 14.6.2017 which was forwarded by the Medical Superintendent on
14.6.2017 (Annexüre A/24 collectively to the OA) which stated as follows: 1' 7. OA.351/1186/2017
"Medical Board Finding & Report:
Shri Imdad Alik H/o Smti. Aziz Fatma was examined by the Medical Board. Opinion of Nephrologists and Visiting Urologist from MEDICA Super Specialty Hospital, Kolkata was taken. Patient is a post operative case of Renal Allograft Recipient (Renal Transplantation). At present he is stable with renal function parameters within normal limit and he is advised to continue medication as advised by the Nephrologists. He is advised to review after one year or if he has any problem. He can take care of himself"
In the meantime, while such Medical Board was considering its
findings, the respondent authorities, in compliance to the Tribunal's
order dated 19.7.20 16 issued a speaking order rejecting the claim of the
applicant.
7. The applicant has challenged two orders in the instaflt applkation
The transfer order dated 17.6.2017 (Annexure A/3 to the OA). As,
however, the applicant has joined her duties on 28.4.2017 (Annexure
A/ 15 to the OA), this cause of action does not survive any longer and is
disposed of accordingly as infructuous
The second order that has been challenged is the speaking order
dated 12.6.2017 (Annexure A/24 to the OA) wherein the respondent
authorities has dealt with the matter on two grounds - (a) whether the
applicant is entitled for. further retention on medical grounds as provided
under para (xi) of the transfer guidelines and (b) whether the applicant
has been transferred as per transfer guidelines.
It is seen that the applicant and her husband has been provided
with enough opportunities of examination by the Medical Board. Not
being satisfied with the findings of Medical Board dated 19.4.2016, the
applicant was given, inter alia, another opportunityfor appearing before
a Medical Board to further examine her spouse during June 2017. While
the report of the Medical Board dated 19.4.2016 states that the patient 8. OA.351/1186/2017
can take care of himself, the report of the Medical Board conveyed by
letter dated 14.6.2017 states that at present he is stable within renal
function parameters within normal limit and is advised to continue $ medication. Both certificates state that the applicant's spouse can take
care of himself. It is obvious from such findings that that the patient's
condition is gradually improving over time, given that the kidney
transplantation has taken place seventeen years earlier. It is also a
matter of record that the criticality of his condition as evident in Medical
Board's findings in 2012 are reportedly much more subdued when he
was re-examined in 2016 and 2017 not by one but by two medical
Boards of different Hospitals leaving no further scope of ambiguity in this
regard. The transfer guidelines require that the Medical Board has to
certify ailments which calls for retention of the employee and in this case
there are no further Medical Board certifications that conclusively justify
the retention of the applicant on medical grounds.
The respondents have established, both vide their earlier speaking
order dated 2.11.2016 as well as in the speaking order dated 12.6.2017
that the transfer policy guidelines having been violated in the case of the
applicant on account of her overstay in combined tenures of Zone V & VI,
there is no option but to transfer the applicant to another zone as
required under the guidelines. Hence we do not find any scope of
interfering in the legality, logic or the rationale as advanced in the speaking order, so impugned.
In Gujarat Electricity Board -vs• Atmaram Sangomal Poshani
[AIR 1989 SC 1433], the Hon'ble Apex Court has observed that transfer
is an incident of service and a Government employee has no legal right
for being posted at any particular place.
It is also seen from the records, that during the time of filing the
application in 2017, the applicant was 45 years of age and has about 15
years of service left. It is hence extremely unrealistic to expect that her 9. OA.351/1186/2017
entire service ca±eer and what is left of it, will be spent in zke V I & VI of the A&N Adminiètration on medical ground.
8. Hence, in our considered view, the original applicaÜon does not
call for intenen1ion and is dismissed accordingly. There will be no order
as to costs I .
(DR. NANDITA CHAUERJEE) (S.K.PAiThiAIK) ADMINISTRATWE MEMBER • • JUDICIAL MEMBER
I.Nath H
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