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Judgment
Ashok B. Hinchigeri, J.—The petitioner has called into question the first respondent''s order, dated 19.11.2015 (Annexure-A) insofar as it pertains to the petitioner and the respondent No. 4. The respondent No. 1 has transferred the petitioner to Chamarajanagara Institute of Medical Sciences (''C.I.M.S.'' for short) as Professor and appointed the respondent No. 4 as In-charge Superintendent of the second respondent Mandya Institute of Medical Sciences (''M.I.M.S'' for short).
Sri M.S. Bhagwat, the learned counsel for the petitioner submits that M.I.M.S. Rules and Regulations, 2013 (''the said Rules and Regulations'' for short)do not provide for the transfer of its employees to another autonomous Institute in the normal course. The transfer of the employees from one autonomous Institute to another autonomous Institute is permitted only under extraordinary circumstances and after the passing of the resolution by the respective Governing Council. He reads out Regulation 12 of the said Rules and Regulations. The same is extracted hereinbelow:--
"12. Transfer of the Teaching/technical staff:-- Generally, there shall be no transfers of teaching and non-teaching staff recruited or absorbed by the institute from one autonomous institute to another autonomous institute. However, under extra-ordinary circumstances and for the reasons to be recorded in writing, the Government shall have the powers to transfer any teaching or technical staff from one autonomous institute to another autonomous institute. The teaching or technical staff so transferred shall be shown last in the seniority list of that category, to which he has been transferred to irrespective of this seniority in the parent institute. No such transfer can be considered without a resolution of the respective governing council to spare/accept a person."
He submits that the petitioner is appointed as the Superintendent of second respondent Institute for a fixed period of three years. To advance the submission that the incumbent of a tenure post cannot be disturbed before the expiry of the tenure, he relies on the following citations:--
"i) Dr. L.P. Agrawal Vs. Union of India and others,
ii) Dr. S.K. Kacker Vs. All India Institute of Medical Sciences and Others,
iii) P. Venugopal Vs. Union of India (UOI), ."
He submits that the charges levelled against the petitioner are absolutely baseless. They do not even pertain to the period during which he has been working as the Superintendent of second respondent Institute. They pertain to the petitioner''s predecessor-in-office.
Sri Bhagwat takes serious exception to the respondent No. 1 transferring the petitioner as Professor. By the transfer order, the reduction in the rank is effected. He would therefore contend that the first respondent has already imposed the penalty on the petitioner without holding an enquiry.
He submits that the petitioner is not promoted to the post of Medical Superintendent based on his seniority. He is selected from amongst the four candidates, who had submitted their applications for being appointed as Medical Superintendent. He also relies on the Minimum Qualification for Teachers in Medical Institutions Regulations 1998 (MCIs), wherein the qualification prescribed for a ''Medical Superintendent'' is ten years administrative experience in addition to possessing the recognised post-graduate medical qualification from a recognised Institution. He submits that the petitioner has the requisite ten years'' administrative experience, as he has worked as the Head of the Department of General Medicine.
He submits that the Governing Council of C.I.M.S. has not passed any resolution to accept the petitioner as its Professor. He also takes serious exception to the communication, dated 18.11.2015 (Annexure-R3 to the second respondent''s counter). He has two folded objections to the said communication. The said communication is issued on 18.11.2015, whereas the resolution for transferring the petitioner is passed on 16.11.2015. The second objection which he has raised is that it is sent by the Director and Dean of C.I.M.S. to the Director, Directorate of Medical Education, Bengaluru. It is not supported by the resolution of C.I.M.S.
He submits that the impugned order is without the authority of law and without jurisdiction. As per Regulation 12 extracted hereinabove, the transfer order is to be passed by the Government. In the instant case, it is passed by the Vice Chairman of M.I.M.S. He relies on this Court''s decision in the case in the case of B.M. Muniappa Vs. State of Karnataka and Others, in that regard.
Sri Madhusudan R. Naik, the learned Advocate General appearing for the respondent Nos. 1 to 3 submits that the petitioner alongwith the Dean of second respondent Institute is facing the grave charge of purchasing spurious drugs, etc. If the enquiry is held retaining the petitioner at the helm of second respondent Institute, it is apprehended that he may influence the witnesses and obstruct the course of enquiry. To facilitate fair and proper enquiry, the impugned order is passed.
The learned Advocate General brings to my notice the official memorandum, dated 23.1.2013 (Annexure-D), which itself states that the petitioner''s appointment as Medical Superintendent is for a period of three years or until further orders. Therefore, there is no legal impediment in terminating the arrangement of his Medical Superintendent ship of the second respondent Institute before the expiry of three years for just reasons.
He submits that Bye-laws 20 and 24 of the second respondent Institute states that the service rules of the government servants are applicable for the employees of the second respondent Institute. It is therefore open to the Governing Council of the second respondent to keep the petitioner under suspension pending enquiry, invoking Rule 10 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 [''K.C.S. (CCA) Rules'' for short]. He submits that having regard to the position held by the petitioner, the respondent Nos. 1 and 2 have only transferred him to C.I.M.S. The transfer is in larger public interest. He submits that the post of Medical Superintendent is not a sanctioned post at all. As per Regulation 2(n) of the M.I.M.S. Rules and Regulations, 2013, ''Medical Superintendents'' means one of the professors of the Medical College working in the attached hospitals of the Institute having in charge of administration. On receiving the requisition from C.I.M.S. for a Professor in General Medicine, the petitioner is transferred to the said Institute as Professor of General Medicine.
Ms. Deepashree, the learned counsel appearing for the respondent No. 4 submits that the respondent No. 4 has already taken the charge as the Medical Superintendent of second respondent Institute on 21.11.2015.
Sri Bhagwat, the learned counsel for the petitioner quickly joins issue with her by emphatically denying that the respondent No. 4 has ever taken the charge. He asserts that the petitioner continues to work as the Medical Superintendent as of now also.
Smt. Rafeeunisa, the learned Government Pleader appearing for the respondent No. 1 submits that the earlier notification, dated 11.6.2015 (Annexure-K) transferring the petitioner to Kodagu is issued by the Government in the name of the Governor. The petitioner challenged the said order on the ground that the Medical Superintendent cannot be removed by the State Government. It was the specific contention of the petitioner that it is the third respondent Governing Council of M.I.M.S. alone which is competent to take action against the petitioner. Now the petitioner makes the ''U'' turn and takes the contention that the transfer order is to be issued by the Government in the name of the Governor.
The submissions of the learned counsel have received my thoughtful consideration. The first question that falls for my consideration is whether the post of Medical Superintendent is a tenure post? The official memorandum, dated 23.1.2013 (Annexure-D) appointing the petitioner as a Medical Superintendent itself states that the appointment is for a period of three years or until further orders. The relevant portion of the said memorandum is extracted hereinbelow:--
The words ''until further orders'' enables the Government to terminate the arrangement even before the expiry of three years. The petitioner has no vested right to demand that he be continued as Medical Superintendent of M.I.M.S. for three years. It is profitable to refer to the Apex Court''s decision in the case of Mani Subrat Jain and Others Vs. State of Haryana and Others, , wherein it is held that a person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to be abstained from doing something. There must be a judicially enforceable right as well as a legally protected right for seeking a writ of mandamus.
Way back in 1964, the Apex Court in the case of State of Orissa Vs. Ram Chandra Dev and Mohan Prasad Singh Deo, has this to say in paragraph No. 8 of its decision:--
"8. On the merits, the position is absolutely clear. Under Art.226 of the Constitution, the jurisdiction of the High Court is undoubtedly very wide. Appropriate writs can be issued by the High Court under the said article even for purposes other than the enforcement of the fundamental rights and in that sense, a party who invokes the special jurisdiction of the High Court under Art. 226 is not confined to cases of illegal invasion of his fundamental rights alone. But though the jurisdiction of the High Court under Art. 226 is wide in that sense, the concluding words of the article clearly indicate that before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right and the said right is illegally invaded or threatened. The existence of a right is thus the foundation of a petition under Art. 226 ........"
The second question is whether the impugned transfer is bad, as the C.I.M.S. has not passed the resolution accepting the petitioner to become its Professor. The rationale behind the last part of Regulation 12, extracted hereinabove, is that no employee of one autonomous Institution should be imposed upon another autonomous Institution. But on the ground that the transferee Institute has not passed the resolution, the transferred employee of the transferor Institute cannot question the transfer order. It is trite that transfer is an incidence of service. The employee has no vested right to demand that he be retained in a particular place or be posted to a particular place. The master/employer can always transfer its employees depending upon the exigencies of administration.
In the instant case, though both M.I.M.S. and C.I.M.S. are autonomous, they are basically Government Institutions. The Memorandum of Association of M.I.M.S. states that the Minister for Medical Education is the ''Chairman'' and that the Secretary of Health and Family Welfare Department, Government of Karnataka is the ''Vice Chairman.''
It is also not in dispute that C.I.M.S. has already written to the concerned functionary, namely, Director of Medical Education for the posting of a Professor in General Medicine as per the communication, dated 18.11.2015. Just because it is not issued to the first respondent or because it is after the passing of the resolution by the second respondent, the need for the services of a Professor in General Medicine in C.I.M.S. cannot be disputed.
Be it as it may, if C.I.M.S. (which is not a party to these proceedings) has any grievance over the posting of the petitioner to it, it would take up the matter with the appropriate forum in the appropriate proceedings.
The petitioner is facing the grave charge of purchasing the spurious drugs. If he is allowed to be at the helm of affairs of the second respondent Institute, he may tamper with the evidence or obstruct the course of the contemplated domestic enquiry. The consequence of taking spurious drugs by the patients could be disastrous. The larger public interest requires that the petitioner be kept away from the office of Medical Superintendent of the second respondent Institute till the proposed enquiry is concluded.
The Apex Court in the case of The Rajasthan State Industrial Development and Investment Corporation and Another Vs. Diamond and Gem Development Corporation Ltd. and Another, has expressed the considered view that a writ of mandamus does not lie to create or establish a legal right to enforce the legal right that is already established. A writ remedy is equitable in nature and its issuance is governed by equitable principles; the prime consideration for the issuance of the writ is promotion of substantial justice. The writ court may grant or refuse a writ on the grounds of public policy, public interest or public good. The writ court has to consider the extent of injury that is likely to be caused either by the grant or refusal of the writ. In the instant case, quashing the transfer order and directing the respondents to retain the petitioner''s services at the second respondent Institute would come in the way of fair and proper enquiry into the allegation of purchase of spurious drugs.
This Court does not propose to express any opinion or deliver any finding on whether the petitioner is guilty or innocent, whether the charges pertain to petitioner''s period or to the period of his predecessors-in-office, as they are in the domain of the enquiry officer and/or the disciplinary authority.
The Hon''ble Supreme Court in the case of Air India Ltd. Vs. Cochin Int., Airport Ltd. and Others, and in the case of Master Marine Services Pvt. Ltd. Vs. Metcalfe and Hodgkinson Pvt. Ltd. and Another, reiterated the legal position that even when some defect is found in the decision-making process, the court must exercise its discretionary powers under Article 226 with great caution; it should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should interfere.
I also see considerable force in the submission of Smt. Rafeeunisa, the learned Government Pleader that virtually the petitioner has been approbating and reprobating. In the earlier writ petition (W.P. No. 24567/2015, dismissed on 26.11.2015), the petitioner has this to say in paragraph No. 5.1 of the memorandum of writ petition:--
"5.1 The impugned Order is passed by the 1st Respondent against the Rules and Regulations. The Rules and Regulations produced before this Court would establish that Medical Superintendent cannot be removed by the 1st Respondent. Rule 2(n) defined the word Medical Superintendents and he is appointed by the Governing Council. Therefore, removal of the Petitioner and reverting the Petitioner to the original post which is not in existence is liable to be set aside. The impugned Order is one without jurisdiction and the 1st Respondent has no power to remove the Petitioner from the post of Medical Superintendent. The Petitioner has been appointed to the said post on the recommendation of the Governing Council. It is the 3rd Respondent who is competent to take action against the Petitioner. The disciplinary authority is the 3rd Respondent and the 1st Respondent has no role to play in the matter and on this ground alone it cannot be sustained in law. Therefore, impugned Order passed by the Government is one without authority of law."
The perusal of the afore-extracted averments reveals that the earlier transfer order came to be issued by the Government in the name of the Governor. In the present case, the impugned transfer order is issued by the Vice Chairman. Now the petitioner contends that the same is not permissible, because it is not issued by the Government in the name of the Governor.
The perusal of the impugned notification reveals that the resolution is passed by the Governing Council for the transfer of the petitioner and the same is communicated by the Vice Chairman of the Institute. Therefore, neither the Governing Council nor the Vice Chairman can be found to be at fault for issuing the impugned notification.
If bye-law-20 is read in conjunction with bye-law-24 of the second respondent Institute Service Rules, it becomes clear that the K.C.S. (CCA) Rules are made applicable for the employees of the second respondent Institute. Invoking Rule 10 of the K.C.S. (CCA) Rules, it was also open to the disciplinary authority to suspend the petitioner from services pending the enquiry, but it has not resorted to that extreme step.
The last of the submissions urged by Sri Bhagwat certainly merits consideration. The petitioner, who was appointed as the Medical Superintendent of M.I.M.S. is transferred to C.I.M.S. as Professor in General Medicine. The grievance of the petitioner that it amounts to reduction in the rank cannot go unaddressed. If the petitioner has the leave to his credit, he should be permitted to go on leave pending enquiry, should the petitioner seek it.
Further, if the post of Medical Superintendent is vacant in any other autonomous Institute, the respondent Nos. 1 and 2 and the concerned Institute have to explore the possibility of accommodating the petitioner as the Medical Superintendent of that autonomous Institute. It is made clear that this part of the order is not to be construed as an enforceable direction. It is an observation, as the Government and its Institutes have to act as model employers.
This petition is accordingly disposed of. No order as to costs.