W.P.C.No.25055 of 2014 is filed to quash Ext.P5 and seeks a further declaration that the transfer of petitioners is illegal and respondents 4 to 6 have not completed three years period of service in National Rural Health Mission (for short 'NRHM') and are not eligible for getting any transfer.
2. The facts as disclosed would show that the petitioners are working as Medical Officer (Ayurveda) in Adimaly Grama Panchayat under the District Health and Family Welfare Society, Idukki on contract basis.
3. By a circular dated 19/06/2014, issued by the NRHM, it is informed that the governing body meeting of the State Health and Family Welfare Society which met on 07/02/2014 decided to absorb Medical Officers appointed under the Ayush scheme to NRHM and to pay the remuneration from NRHM. In the light of the said decision, permission was granted to consider the request of Ayush from Government hospitals and NRHM dispensaries. Petitioner submits that they were already employed and posted to NRHM dispensaries and had completed three years of service. Ext.P4 is the guidelines for NRHM, Kerala and it is pointed out that Clause 5.2.3 indicates that to enable an employee to be eligible for transfer, he or she should have completed three years of continuous service in NRHM. As against the said provision, the complaint of the petitioner is that Ext.P5 order came to be issued by the 3rd respondent on 18/07/2014 transferring NRHM Medical Officers. Petitioners were transferred to various other dispensaries and Ayurveda Hospitals. It is stated that the said orders of transfer were issued only on the basis of requests made by respondents 4 and 6 and to accommodate them.
4. Contention of the petitioners is that respondents 4 to 6 were working under the Ayush scheme which was funded by the Central Government. When the funding was stopped, they were absorbed under NRHM with effect from 16/04/2014. Since their absorption in NRHM is only with effect from 16/04/2014 and a new contract has been entered into under the NRHM scheme, they cannot be transferred without completing the three year period. It is contended that petitioners have entered into a contract with the District Health and Family Welfare Society in Idukki and 3rd respondent has no role in the administrative functioning of the society. Further, it is contended that though the order of transfer was kept in abeyance by the State Mission Director when certain anomalies were noticed, due to political interference of the 4th respondent, the authorities are not intending to rectify such anomalies. It is in the said background that the writ petition is filed seeking the reliefs aforesaid.
5. Statement is filed by the 2nd respondent inter alia contending that the National Health Mission (for short 'NHM') formerly known as NRHM is a scheme conceived and implemented by the Government of India through societies set up at National, State and District levels to supplement, support and augment the public health facilities of the State Government through funds made available by Government of India. It is further submitted that by virtue of Government of India order dated 17/11/2011, sanction was given for appointment of 34 Government Homoeo Medical Officers and 16 Ayurveda Medical Officers in 68 Ayurveda Hospitals. Since there were many persons included in the rank list prepared by the NHM, Kerala in various Districts and only a few of them could be offered contractual engagement, the State Government, by order dated 06/09/2010 directed the Hospital Management Committees of the respective hospitals to engage Medical Officers from the District wise rank list maintained by NHM, Kerala. It is further stated that while engaging Doctors on contract basis from the rank list assigning them posts under NHM or under Ayush, their consent was not obtained. Appointments were made under NHM and Ayush based on their seniority and depending upon the vacancies that arose.
6. With effect from November 2012, Government of India did not release any funds under the Ayush Scheme. A situation arose that the remuneration of Doctors engaged in the Ayush scheme could not be paid on account of lack of funds. Therefore, an option was given to Medical Officers to work on contract under the NRHM scheme. NRHM, in their general body held on 07/03/2014 decided to transfer all Ayush Medical Officers both Homoeo and Ayurveda and post them as Medical Officers under the NHM so that they can receive remuneration from NHM funds from February 2014 onwards. Therefore it is contended that petitioners cannot claim any seniority against respondents 4 to 6. All of them were appointed based on the same rank list District wise. Some were appointed in NRHM and the others in Ayush. Now that their service is common, one person cannot claim priority over another.
7. Reply affidavit is filed controverting the stand taken by the respondents with reference to seniority position.
8. W.P.C.No.23554/2014 has been filed by respondents 4, 5 and 6 in W.P.C.No.25055 of 2014 seeking for a direction to implement Ext.P3 order of transfer issued pursuant to Ext.P2.
9. It is inter alia contended that the 2nd respondent had issued Ext.P1 order dated 22/03/2014 directing the concerned District Medical Officers to transfer and redeploy various Medical Officers to complete three years service in one station. On that basis, Ext.P2 order of transfer was issued. According to the petitioners, they were working in one station for the last three to four years. Despite the said directions, no action has been taken in the matter. On the basis of Ext.P2, the petitioners were relieved from the respective posts to enable them to join in the new place of transfer. Though the petitioners had approached the Kerala Administrative Tribunal seeking for implementing the orders of transfer, the same was rejected on the ground that the Tribunal has no jurisdiction in the matter. Petitioners complain of the inaction on the part of the 2nd respondent in implementing Ext.P2 order.
10. Counter affidavit is filed by the 6th respondent who is the 1st petitioner in W.P.C.25055 of 2014 . It is contended that Ayush and NRHM are different and distinct legal entities. Petitioners were absorbed in NRHM only on 16/04/2014 and prior to that they were in the service of Ayush. The length of service to be considered for transfer is to be reckoned from the date of their joining in NRHM and the length of service in Ayush cannot be the criteria. The writ petitioners have filed a reply also controverting the stand taken by the 6th respondent in the counter affidavit.
11. Heard the learned counsel for the petitioners as well as the learned Standing Counsel on behalf of NRHM.
12. The short question to be considered in the writ petition is whether the Doctors who have been appointed as Homoeo and Ayurveda Medical Officers can be transferred to accommodate persons who had been deployed as NRHM Medical Officers from Ayush. There is no dispute about the fact that the appointment is on contract basis and District wise. Consequently, any person employed in NRHM could be transferred to any place within the District. One cannot insist that he should work in a particular place alone. As far as NRHM Medical Officers who had their original appointment in Ayush are concerned, they were all working as Medical Officers in the respective dispensaries/hospitals for several years. In terms of the policy of NRHM, transfer is permissible at any time and no Medical Officer can insist that he should not be transferred.
13. The main contention urged by the petitioners challenging the orders of transfer is that they cannot be displaced to accommodate persons who have less period of service in NRHM. It is highlighted by the learned Standing Counsel appearing for NRHM that Medical Officers deployed from Ayush and NRHM were selected from the same rank list. Depending upon the availability of vacancies, they were appointed either in NRHM or Ayush. Their appointment in Ayush has to be wound up and they were treated as employees of NRHM on account of a special circumstance where funds were not being available by the Central Government to Ayush. As a result, the salary could not be paid and after getting their option, they were permitted to form part of NRHM Medical Officers. Therefore, the contention with reference to two different streams of appointments is not sustainable. All the persons who had worked for specified period of time, if as a policy matter, the management decided to transfer them, it is not open for this Court to sit in judicial review and set aside the said transfer orders. Other than pointing out the fact that the petitioners in W.P.C.No.23554 of 2014 have joined NRHM only on 16/04/2014, no other material is placed on record to indicate that the transfer order is bad in law. Reference is also made by the learned counsel for the petitioners in W.P.C.No.23554 of 2014 to Ext.P1. It is an order passed by the NRHM on 22/03/2014. Clause (3) indicates that if a person is employed in a Grama Panchayath either in Ayush or NRHM, they should be redeployed. When Ext.P1 order is common to NRHM as well as Ayush employees, there is no reason to differentiate them in any manner. If the petitioners in W.P.C.No.23554 of 2014 have been working in a particular dispensary/hospital, either under Ayush or NRHM, the policy is to redeploy them.
14. In regard to the allegation of bias in implementing the transfer order, no materials are available to infer such a bias. However, if any anomaly is noticed in the order of transfer, it shall be open for the competent authorities to rectify the same in accordance with the procedure followed.
15. Learned counsel for the petitioners in W.P.C.No.25055 of 2014 has also produced Exts.P16 and P17 along with I.A.No.15498/2014. Perusal of Ext.P16 indicates that it is an order issued by the State Mission Director inter alia indicating that orders for transfer and posting of all category of NRHM employees including Ayush Medical Officers shall be done by the District Programme Management and Supporting Unit (DPMSU) of the District concerned. Apparently, this order is issued only on 31/10/2014 cancelling the earlier orders issued. Ext.P17 is another order dated 10/11/2014 issued by the District Medical Officer (ISM) cancelling the earlier order issued by him on account of Ext.P16. Transfer orders relating to Kollam unit is not under consideration in these writ petitions and therefore I do not think that the same has any bearing on the factual issues involved in these matters.
In the said circumstances, I do not find any merit in the claim made by the petitioners in W.P.C.No.25055 of 2014 and consequently the petitioners in W.P.C.No.23554 of 2014 are entitled for the reliefs sought for. Accordingly these writ petitions are disposed of as under:
i) W.P.C.No.25055/2014 is disposed, permitting the petitioners to point out any anomaly in the order of transfer, which shall be considered by the State Mission Director.
ii) W.P.C.No.23554/2014 is allowed and there will be a direction to the respondents to implement Ext.P2 order of transfer, without prejudice to their right to rectify any anomaly.
(sd/-) (A.M.SHAFFIQUE, JUDGE) jsr