Case: DR. NAGORAO SHIVAJI CHAVAN Vs. DR. SUNIL PURUSHOTTAM BHAMRE &amp; ORS

2. It is a case where we find that Respondent No.1 was transferred from the post of Civil Surgeon, Jalgaon vide order dated 05.08.2017, as Assistant Director, AIDS Control Society, Wadala, Mumbai. By the same order, the Appellant had been transferred to the post of District Civil Surgeon, General Hospital, Jalgaon. 67 other doctors were also transferred on administrative grounds from one place to another3. Respondent No.1 had been appointed as Medical Superintendent, Ghoti District, Nasik, in September, 1996 and remained there till July, 2002. In July, 2002, he was transferred from Ghoti to Nasik as a proper Medical Officer, where he worked till 13.06.2005. Vide order dated 13.06.2005, Respondent No.1 was transferred from Nasik to Jahwar tribal place in Thane District, but he did not join at the place where he was transferred for five years and 20 days. Again, he obtained his posting back to District Hospital, Nasik vide order dated 03.07.2010 and remained posted at Nasik till 03.03.2014. Thereafter, on 05.03.2014, Respondent No.1 was transferred from District Hospital, Nasik, to District Civil Hospital, Dhule, as Civil Surgeon4. On 16.08.2016, Respondent No.1 was transferred from Dhule to Jalgaon, and as a Civil Surgeon he joined there5. There are various allegations made as to his functioning. However, what is significant is that Chief Executive Officer, Jalgaon, wrote a letter to the Commissioner, Health Services and Director National Health Mission, Mumbai, pointing out the financial irregularities, acts of omission and commission committed by Respondent No.1 while he was discharging his duties as Civil Surgeon, Jalgaon. On 05.06.2017, a Committee was constituted to look into the conduct of Respondent No.1. The Enquiry Committee found a prima facie case against Respondent No.1 of financial and procedural irregularities and insubordination vide report dated 18.08.20176. It transpires that the appellant and others had questioned the decision taken by the Government of nonpracticing allowance vide G.R. dated 07.08.2012. There was yet another incident at Beed when appellant was posted at Beed. He had conducted a cesarean surgery on Mrs. Vaishali Bansode and it was claimed that she died due to medical negligence of the appellant; post-mortem was conducted; a Committee was formed and the Committee found him guilty of medical negligence, he was found practicing and drawing non-practicing allowance. This fact is disputed by the appellant. He had filed a representation which is stated to be pending consideration. There were certain charges levelled on appellant of improperly touching certain women during the course of Nurse selection. For inquiring into the said allegations, a Committee was also constituted. The Committee exonerated the appellant and the complaint was found to be baseless as per report dated 17.09.20187. In the aforesaid backdrop of facts, Respondent No.1 was transferred from Jalgaon to Mumbai and the appellant was transferred in his place as to take over as Civil Surgeon, Jalgaon. The order was successfully assailed by the appellant before the Maharashtra Administrative Tribunal. The Tribunal allowed the application vide order dated 01.02.2018. The High Court declined to interfere, as such the appeal is before us. The Government has supported its order of transfer dated 05.08.2017. The order has been questioned on the ground of violation of statutory provisions prescribing normal tenure of three years.

Reasoning: 8. After hearing learned counsel for the parties at length, we are of the opinion that the High Court as well as the Tribunal have erred in law in the facts and circumstances of the case in relying upon the provisions contained in Section 3 and Section 4 of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 (hereinafter referred to as ?the Act?)Thus, it is apparent from the conjoint reading of Sections 3 and 4 that though the normal tenure is 3 years but in the administrative exigencies a transfer is still permissible. There is no total embargo. No doubt the statutory provision of tenure is required to be observed unless special exigency arises. In the backdrop of the facts that complaint had been lodged by Chief Executive Officer, Zila Parishad, inquiry had been made into that and the allegations of financial irregularities and insubordination have been found to be substantiated. It was absolutely proper not to retain Respondent No.1 as Civil Surgeon, Jalgaon. It was not in the interest of the administration to retain him any further at the said place. Though,it was contended by learned counsel appearing on behalf of Respondent No.1 that no financial irregularity or insubordination was committed by Respondent No.1.We cannot adjudicate upon this issue at this stage, as it is for the Government to decide it. But there was sufficient administrative ground to transfer Respondent no.1 from the post of Civil Surgeon, Jalgaon to Assistant Director, AIDS Control Society, Wadala, Mumbai11. Notwithstanding the provisions contained in Section 3 which uses the expression that ?ordinarily the tenure is three years?, in our opinion in exceptional circumstances in a given case, or in the case of administrative exigencies, transfer is permissible, and no absolute bar on transfer is created by virtue of the provisions contained in section 3 read with section 4. In the facts and circumstances of the case and also considering the past record of respondent No.1 of not joining the place where he was transferred for five years, no interference with the order of transfer is called for.