Dr. Ramesh Bharti vs State Of HP And Others

L. Narayana Swamy, CJ

The present Writ petition filed under Article 226 of the Constitution of India mainly takes exception to the order dated 1.6.2018, passed by the

Erstwhile State Administrative Tribunal in O.A No. 2654 of 2018, whereby the Original Application filed by the petitioner was dismissed. However,

the petitioner has also prayed for the following reliefs:

“(i) That the impugned order dated 31.1.2019 passed in OA No. 2654 of 2018 by the Ld. Administrative Tribunal may kindly be quashed.

(ii) That prayer that order Annexure AÂ8 dated 25.4.2018 may be quashed and set aside as made before the Ld. Administrative Tribunal be

allowed in its entirety in the interest of justice and fair play.

(iii) That the process of creating of post of Advisor at Government level to assist Administrative secretary be declared illegal as same suffers

from inherent illegality and has no foundation.â€​

Shorn of all unnecessary details, the facts leading to the presentation of this writ petition can be stated thus. The petitioner was initially appointed as

Assistant Professor in the Cadre of IGMC Shimla. On the establishment of RPGMC Tanda, the State Government sought options from Assistant

Professors to join in the cadres of RPGMC Tanda. Accordingly, the petitioner joined as professor at RPGMC Tanda. The petitioner was promoted as

officiating Principal on the basis of his merit through a proper selection process by way of Departmental Promotion Committee. Thus, the petitioner

was appointed as officiating Principal on 31.12.2016 and in addition to his own duties, he is stated to have performed about 200 surgeries in the year

2017.

It appears that the Principal Secretary (Health), Government of Himachal Pradesh, vide its Notification dated 25.04.2018, transferred the petitioner

as Advisor, Medical Education Himachal Pradesh in public interest. This Notification of transfer was subject matter in aforesaid Original Application

which came to be dismissed on 31. 1.2019.

The order of transfer as Advisor to the Medical Education Department of Himachal Pradesh has also been called in question by way of this

petition.

While challenging the impugned order of transfer, the petitioner has taken various grounds, namely; that the impugned order of transfer is against

the public interest as the same would not be served in case a surgeon is not allowed to perform his duty in Medical College and to allow a surgeon to

sit as Babu in secretariat at the whims and fancies of person in power in facts of present case is colourable exercise of power hence the same is bad

in law. The action of the State Government transferring the petitioner as advisor is stated to be beyond his cadre without obtaining his consent, which

is illegal. It is contended that the RPGMC Tanda has its own cadre for all intents and purposes. It is further contended that the process initiated by the

State Government to appoint Advisor suffers from malice in law and facts. The Himachal Pradesh Medical Education Service Rules, 1999 do not

permit transfer from outside cadre even to the other Medical Colleges since each Medical College has its own cadre strength. It is contended that the

selection process for Advisor has vitiated as the person under consideration Dr. Ashok Sharma was himself a member of selection committee, hence

a person cannot be a judge of his own cause. Therefore, it is stated that the case of the petitioner was prejudiced as Dr. Ashok Sharma was senior to

petitioner and having vast experience of administration, hence Dr. Ashok Sharma could be appointed as Advisor. It is also stated that no reasons have

been assigned to oust senior Professors/Principals hence the decision making process is bad in law. Therefore, on these grounds, the learned Senior

counsel prays that the petition may be allowed.

The Tribunal has dismissed the Original Application of the petitioner by observing that it is for the highest authority to create the post and devise

method of selection, it has overriding effect on the rules and the cadre rules are subservient to such decision. The post of Advisor is equivalent to the

post of Principal carrying same pay scale and does not, in any way, is exÂcadre post to necessitate obtaining of consent. It has further been observed

that it is the prerogative of the employer to find out in what manner the services of the employees are to be utilized.

We have given various hearings to the present case through physical and through Video Conferencing. Today, when the matter came up for

hearing, through physical hearing, the Additional Chief Secretary (Health), Government of Himachal Pradesh was present in Court in order to assist

the Court in the matter. On instructions, the learned Senior Additional Advocate General argued that the transfer of the petitioner as Advisor is only an

incident of service. He has not been deprived of his status or even salary. Transferring an employee is the prerogative of the Government as has been

rightly held by the Tribunal which calls for no interference.

Be that as it may, the learned Senior Additional Advocate General submits that the Government is now willing to transfer the petitioner as Principal

to Pt. Jawahal Nehru Government Medical College and Hospital, Chamba. However, this submission of the learned Senior Additional Advocate

General is not acceptable to the learned Senior counsel for the petitioner for the as according to him each Medical College has its own medical cadre

and the petitioner belongs to the cadre of RPGMC Tanda. It is submitted that he cannot be transferred out of cadre which is impermissible under

Himachal Pradesh Medical Education Service Rules, 1999. Hence it is prayed that the petitioner may be ordered to perform his duties as Principal at

RPGMC, Tanda since he has been promoted as such by the Departmental Promotion Committee.

At this juncture, the learned Senior Additional Advocate General has placed reliance on the Notification No.HFWÂB (B)9Â1/2008ÂII dated

22.10.2019, whereby the Himachal Pradesh Medical Education Service Rules, 1999 have been amended to the extent it relates to the post of

Principal. It provides that the post of Principal shall be transferable from one Government Medical College to another.

The present case now appears nothing but merely a transfer. The transfer is an incident of service as has been held by the Supreme Court in

catena of decisions. Now in view of the amendment carried out to Himachal Pradesh Medical Education Service Rules, 1999 coupled with the

submissions made by the learned Senior Additional Advocate General, on instructions from the Additional Chief Secretary (Health), Government of

Himachal Pradesh, a Principal can be transferred from one Government Medical College to another, the order of transfer, subject matter of this

petition, is binding on the petitioner unless it is set aside. Thus, the submissions made by the Mr. Shrawan Dogra, learned Senior Advocate, that the

petitioner cannot be transferred from the cadre of one Medical College to another Medical College, cannot be accepted. Now the various grounds

taken, including that of malice and principal of natural justice are academic in the present case and does not require any consideration since the

petitioner is now being considered to be transferred as Principal at Pt. Jawahal Nehru Government Medical College and Hospital, Chamba.

In the given facts and circumstances of the case, we direct the respondents/State to consider the case of the petitioner for transfer to Pt. Jawahal

Nehru Government Medical College and Hospital, Chamba as Principal forthwith. Needless to say, in case the petitioner is transfered to Pt. Jawahal

Nehru Government Medical College and Hospital, Chamba as Principal, he is directed to report for duty as such at Pt. Jawahal Nehru Government

Medical College and Hospital, Chamba forthwith.

With the aforesaid observations/directions, the petition stands disposed of alongwith pending applications, if any.