ESIC Vs. SUMI SAMADDER

JUDGEMENT

(1.) THIS writ petition is directed against the order dated 02.01.2011 passed by the Central Administrative Tribunal, Principal Bench, Delhi (hereinafter referred to as the Tribunal) whereby OA No. 3496/2011 filed by the respondent was allowed. The facts giving rise of the filing of the petition can be summarized as under: Pursuant to an advertisement issued by the petitioner inviting applications for filling up the vacancies in Employees State Insurance (ESI) Hospital, Gurgaon and ESI Hospital Adityapur (Jharkhand), the respondent who had applied for appointment to the post of ECG (Technician) was appointed as ECG (Technician) in the ESI Model Hospital Gurgaon. The offer of appointment stipulated that the respondent would be posted in any of the hospitals/units in NCR/Delhi. Pursuant to a request made by the respondent and some others for transfer on mutual basis, two employees including the respondent posted in Gurgaon were transferred from Gurgaon to Delhi whereas two employees viz. Madan Lal and Daya Chand were transferred from Delhi to Gurgaon. A decision was taken by the petitioners on 8.12.2010 to make ESI Hospital, Gurgaon a part of Haryana instead of NCR/Delhi. Since, the seniority of the employees was to be maintained state-wise, seniority list of Gurgaon Hospital was delinked from Delhi and accordingly the persons who were transferred to Delhi from Gurgaon on the basis of mutual request were asked to give their option as to whether they wanted to remain in Haryana region or wanted to go back to Delhi. Both the persons, who were transferred from Delhi to Gurgaon viz. Madan Lal and Daya Chand opted for coming back to Delhi and their requests were allowed. The respondent and one Swati Jain who was the other person transferred from Gurgaon to Delhi on the basis of the aforesaid mutual request were directed to report to Gurgaon vide order dated 6.5.2011 and vide order dated 10.9.2011, the respondent was relieved from Delhi Hospital. The respondent filed OA No. 3496/2011 seeking quashing of the transfer order. The transfer orders were quashed by the Tribunal vide impugned order dated 2.1.2011.

(2.) A perusal of the offer of appointment dated 22.3.2010 issued to the respondent would show that she was liable to be posted in any of the hospitals/units of NCR/Delhi. There was no term in the offer of appointment issued to the respondent stipulating that she could not be transferred anywhere in the country or to any hospital/unit of ESI Corporation (ESIC) situated outside Delhi/NCR. No Rule governing the services of the respondent and stipulating All India transfer Liability has been claimed by the petitioner. The order passed by the Tribunal has been challenged on the ground that the respondent having been appointed against a post in ESI Model Hopsital, Gurgaon, she can always be transferred back to that Hospital. The contention, to our mind, would be correct provided that ESI Model Hospital, Gurgoan continues to be a part of NCR region of ESIC. We notice the following averments made in the writ petition in this regard: