Dr. Pradip Kumar vs Employees State Insurance Corporation & Ors

Manish Garg, Member (J)

This Original Application has been filed by the applicant under Section 19 of Administrative Tribunals Act, 1985, seeking the following relief(s):

“(i) To quash and set aside the impugned Order dated 23.09.2022 and 20.08.2022 to the extent the applicant has been transferred from ESIC Hospital, Sahibabad to Directorate (Medical) Delhi/ Medical Dispensaries ESIC, Delhi.

(ii) To declare the action of respondents in transferring the applicant from SAG Level Medical Officer post to Entry Grade/ lower post in Medical Administration in ESIC as illegal and issue appropriate directions to continue the applicant at the present place of posting OR post him as Director (Medical) Delhi as per policy for posting to Medical Administrative Post in ESIC.

(iii) To quash and set aside the impugned transfer order dated 23.09.2022 to the extent R-4 has been posted as Director (Medical ) Delhi by ignoring the claim of applicant and post the applicant as Director (Medical) Delhi.

(iv) Such other and further order which their Lordships of this Hon’ble Tribunal deem fit and proper may please be passed.”

At the stage of admission, the applicant seeks following interim relief:-

“Pending final adjudication of the OA, it is humbly prayed that this Hon’ble Tribunal may be pleased to stay the impugned transfer order dated 23.09.2022 to the extent the applicant has been transferred from ESIC Hospital, Sahibabad to Directorate (Medical) Delhi/ Dispensaries, ESIC Delhi and R-4 as Director (Medical) Delhi. In case, the said transfer order is not stayed, the respondents may force the applicant to join at the new place of posting, which is much lower post than the post as occupied by the applicant in SAG Level.”

It is the case of the applicant that he has been transferred at a lower post of Medical Officer in Directorate (Medical) Delhi having grade pay of Rs. 5400/- whereas earlier he was working in the grade pay of Rs. 10,000/- as Medical Superintendent, ESIC Hospital, Sahibabad. Learned counsel for the applicant states that the impugned order is contrary to respondents’ own transfer policy, and even the criteria of posting as stipulated in the transfer policy has been ignored.

Learned counsel for the applicant draws attention to the page 32 of Annexure A-2 wherein following remarks has been made:-

“Remarks

SO- Served Outside

NFS – Not Found Suitable

AMS- Already Medical Superintendent

60+ not transferable due to para 5.2 of transfer policy”

It is also the case of the applicant that the post of Director (Medical) Delhi has to be filled with the SAG Grade Officer with less than 60 years of age. He further submitted that one Dr. Arun Kumar Gupta, GDMO (SAG) whose date of birth is 26.12.1961 and is above 60 years, has been posted as Director (Medical) Delhi as compared to the applicant in present OA whose date of birth is 06.05.1963 and as such is much below the age criteria prescribed in the transfer policy. He further places reliance on the final seniority list wherein the respondent No. 4 is placed at serial No. 8, whereas the applicant is placed at serial No. 5. By virtue of present impugned transfer order, the applicant has been placed at serial No. 7, whereas the respondent No. 4 in impugned transfer order has been placed at serial No. 1. He further prays that after passing of the impugned order, the applicant has made representation dated 29.09.2022 before the Competent Authority i.e. respondent No. 1. He further states that till date the applicant has not been relieved from the post of MS, ESIC Hospital, Sahibabad and Dr. Arun Kumar Gupta/ respondent No. 4 has not joined the transfer post till date. Learned counsel for the applicant states that the applicant would be satisfied if the present OA is disposed of with a direction to the respondents to dispose of the representation dated 29.09.2022 in a time bound manner.

He further relies upon the decisions rendered in (2018) 13 SCC 2018 titled as Regional Director, Employees’ State Insurance Corporation and Another Vs. Soumitra Sengupta and Others, 1982 (Supp) SCC 668 titled as C.C.Padmanabhan And Others Vs. Director of Public Instructions and Others and Aruni Kumar Vs. M/O Finance in OA No. 70/2021 dated 14.01.2021 passed by the Division Bench of this Tribunal

Keeping in view the fact that the representation dated 29.09.2022 is pending before the Competent Authority/ respondent No. 1, this Tribunal is of the considered opinion that it would be expedient in the interest of justice that the present OA is disposed of , at the admission stage itself, without going into the merits, with a direction to the respondent No. 1 to adjudicate and dispose of the pending representation dated 29.09.2021 (Annexure A-5) of the applicant, by passing a reasoned and speaking order, within a period of 15 days from the date of receipt of a certified copy of this order and following the principles of natural justice and giving an opportunity of hearing to the applicant. Till the disposal of the representation dated 29.09.2022, the impugned order dated 23.09.2022 to the extent of applicant’s transfer from MS, ESIC Hospital, Sahibabad to Medical Officer in Directorate (Medical) Delhi is kept in abeyance.

The OA stands disposed of in the aforesaid terms. There shall be no order as to costs.

Order ‘DASTI’.