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| Transfer is service incident, but Compassion cannot be ignored: CAT | | | Early Times Report
Srinagar, July 10: The Central Administrative Tribunal (CAT), Srinagar Bench, has directed the Jammu and Kashmir Health and Medical Education Department to reconsider the posting of a paediatrician to the remote Gurez area, observing that although transfer is an inherent condition of government service, genuine medical and family hardships require a humane and compassionate approach. Judicial Member M.S. Latif passed the order in an application filed by Dr Wasim Qadir, a DNB in Paediatrics, who challenged Government Order No. 534-JK(HME) of 2026 dated July 7, under which he was posted at Community Health Centre Gurez in Bandipora district.
The applicant sought quashing of the order to the extent it concerned him or, in the alternative, his adjustment at a nearby station on medical grounds. He also sought protection against implementation of the transfer until his representation was decided.
According to the application, the doctor had been awaiting posting for nearly four months before being posted to Gurez. He pleaded that his nine-year-old daughter was suffering from a medical condition, stated by his counsel to be autism, while his wife had been undergoing treatment for Bipolar Affective Disorder for nearly 10 years.
The Tribunal noted that the wife’s medical condition was supported by a certificate issued by a Medical Board at the Government Psychiatric Diseases Hospital, Srinagar. The certificate stated that she required social support, constant supervision by family members and a stress-free environment at home.
Observing that courts were not experts in medical matters, the Tribunal said it was for medical specialists to assess the nature of an illness or disability. However, it added that there was no reason to disbelieve the illness projected by the applicant, particularly when it was supported by a Medical Board certificate. Advocates Syed Sajad Geelani and Faizan Rashid Khan, appearing for the applicant, argued that the competent authority was not powerless to reconsider a transfer order where exceptional circumstances warranted such review. They submitted that transferring an employee without considering serious family and health concerns would be against human dignity and that transfer orders could not be implemented mechanically or in a burdensome manner.
Deputy Advocate General Syed Musaib, representing the administration, opposed the plea and argued that transfer was an administrative exigency. He submitted that if doctors declined to serve in Gurez, the remote region would be deprived of specialised healthcare facilities, particularly paediatric services.
The Tribunal agreed that healthcare services in far-flung areas could not be neglected and observed that Gurez required specialist paediatricians. It noted that healthcare was part of the fundamental right guaranteed under Article 21 of the Constitution and that remote populations could not be left without adequate medical facilities. At the same time, the Tribunal held that there must be a balance between administrative requirements and the family responsibilities of an employee.
“Transfer of an employee is not only an incident inherent in the terms of appointment but is also implicit as an essential condition of service,” the Tribunal observed, adding that a government employee had no vested right to remain posted at a place of choice.
It further held that courts had very limited powers to interfere with transfer orders and such interference was permissible only in rare cases involving mala fides, lack of authority or violation of statutory provisions.
However, the Tribunal said the competent authority, being the first responder to an employee’s grievance, could reconsider a transfer where genuine family difficulties required a humanitarian view. Referring to the Supreme Court’s ruling in S.K. Nausad Rahaman versus Union of India, the Tribunal observed that preservation of family life was an incident of Article 21. It also referred to judgments in which courts had called upon authorities to consider the circumstances of employees having specially-abled or seriously ill family members. The Tribunal did not quash or stay the doctor’s posting order. Instead, it disposed of the application with a direction to the competent authority to consider and decide his pending representation on its merits within three weeks from July 13.
While deciding the representation, the authorities were directed to consider the medical conditions of the applicant’s wife and daughter and to strike a balance between administrative requirements and family responsibilities.
The Tribunal also asked the competent authority to adopt a humane and compassionate approach and ensure that human dignity was upheld while taking the final decision. (JNF) |
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