- (1.) This application is at the instance of the Respondents and is directed. against the order dated 16 04.2010 passed by learned Central Administrative Tribunal in connection with OA 105/AN/2009 and OA 28/AN/2009 thereby setting aside the orders dated 26.08.2008 and 04.12.2008 passed by the Commissioner-cum-Secretary (Health). The learned Tribunal also quashed the order of treating the period from 26.08.2008 to 17.12.2008 as EOL. At the same time the learned tribunal passed orders treating period from 26.08.2006 to 04.12.2008 as waiting for posting and for the remaining period the request for grant of leave should be reconsidered having regard to what had been discussed in the judgment.
(2.) The Respondent herein filed the said two applications. The facts in brief are mentioned below. (i) The Respondent was appointed as GDMO and in course of service, he was posted as Deputy Director (HE & HIC) with effect from January, 2006 at G.B. Pant Hospital, Port Blair. By an order dated 29.10.2007, he was appointed as GDMO at Urban Health Centre, Delanipur in place of Dr. E.P. Sharfuddin, who was to retire from his service on superannuation on 31.10.2007. (ii) On getting such order of transfer, the Respondent filed one application bearing No. 159/AN/2007 before the tribunal for setting aside the order of transfer. The learned tribunal dismissed that application on 02.07.2008. Thereafter, the Respondent preferred an application under Article 226 before the Circuit Bench, A&N Islands and that application was numbered as COCT No. 11 of 2008. By an order dated 06.08.2008, the Division Bench directed the Respondent to file a fresh representation within two weeks from date and if such representation was made, the Respondent concerned namely the Commissioner-cum-Secretary (Health) would consider the same on its merits by giving the applicant/Respondent herein a reasonable and fair opportunity of hearing within the period of two weeks from the date of making representation. (iii) The Hon'ble Division Bench also observed that wholly without prejudiced to the rights and contentions of the Respondents, for a period of four weeks, the Petitioner will be entitled to be on medical leave as he is at the moment. However, if for any reason, he applies for extension of medical leave to the authority concerned, the authority concerned will be at liberty to consider the same in accordance with the service rules of the Petitioner/Respondent herein. (iv) Pursuant to that order, the Respondent submitted a representation dated 12.08.2008 raising objection against such transfer. Thereafter the Commissioner-curn-Secretary(Health) passed an order on 26.08.2008 stating inter alia that the insistence of the Respondent to continue his present posting was not tenable at all and that his place of posting was not far away from his residence and such transfer was effected with the approval of the competent authority (i.e. the Hon'ble Lt. Governor). The Commissioner-cum-Secretary (Health) also observed that the Respondent has been working in Port Blair in one or the other capacity for a long period since January, 1997. He could not be allowed to work as Deputy Director (HE & HIC) for a particular period as he was recruited as GDMO and not as a Deputy Director (HE & HIC). (v) Thereafter on 22.09.2008, the Respondent issued a legal notice upon the applicant. (vi) The Respondent then submitted another representation dated 20.11.2008 stating inter alia that no order of posting was passed in his favour in terms of the order dated 26.08.2008. He might be permitted to join the post of Deputy Director (HE & HIC) which was still vacant. (vii) On 04.12.2008, the Commissioner-cum-Secretary (Health) issued another order stating inter alia that the posting of the Respondent to Urban Health Centre, Delanipur could not be changed. The Respondent was accordingly directed to report to the Urban Health Centre, Delanipur forthwith. (viii) On 05.12.2008, the Respondent left the islands to go to mainland after issuing a letter addressed to the Director of Health Services. (ix) On return from the mainland, when he found that two notices were affixed on the door of his residence, he joined UHC, Delanipur as GDMO on 18.12.2008. (x) Subsequently, the Respondent was transferred from the UHC, Delanipur to RPH Hospital, Mayabunder by an order dated 03.02.2009. 24 other doctors were also transferred by that order dated 03.02.2009. Being aggrieved, by aforesaid two orders, the Respondent filed two OA applications before the Central Administrative Tribunal, Circuit Bench at Port Blair. By the impugned judgment, the two applications were disposed of. Being aggrieved, this application has been preferred by the Respondent.
(3.) The Respondent authorities/applicants herein have contested the applications by filing affidavits-in-opposition denying all material allegations made in the applications. They have stated that the transfer of the Respondent to UHC, Delanipur was made in the interest of public, when Dr. E.P. Sharfuddin retired from service on superannuation. The representation of the Respondent dated 12.08.2008 was disposed of by an order dated 26.08.2008, it was observed that the Respondent could not claim his right to continue as Deputy Director (HE & HIC) for a particular period, since he was recruited as GDMO and not as Deputy Director (HE & HIC). The Respondent ought to have joined at Delanipur UHC, as soon as the speaking order dated 26.08.2008 was issued by the Commissioner-cum-Secretary (Health). All the GDMOs are required to serve in all Health Institutions in Andaman and Nicobar Administration. After serving for about 10 years at G.B. Pant Hospital, Port Blair, the Respondent was transferred to Delanipur UHC, which is at a distance of 2 kilometers only from his residence. Subsequently, he was sent to Mayabunder Hospital because there was no Pathologist at that hospital and the Respondent also prayed for appointment as Pathologist because he was qualified for that post. Therefore, there was no illegality in the matter of transfer of the Respondent, so the applications should be dismissed.;