Epidemic Diseases Act Cannot Be Exercised To Transfer An Officer In Disregard Of Transfer Act : Bombay High Court

A division bench of Chief Justice Dipankar Dutta and Justice GS Kulkarni held that allowing the Director, a competent officer under ED Act, to transfer a government servant disregarding the safeguards provided to him under the Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 (Transfer Act), would make such a transfer arbitrary and violative of Article 14 of the constitution (equal protection of the law).

"Having regard to the scheme of the ED Act and the Regulations, it is difficult to trace a power to transfer an officer or to assign an officer on deputation in breach of the other statutory provisions governing the terms and conditions of such officer. The Regulations obviously cannot override the Transfer Act and, therefore, has to yield to the latter," the order read.

The Bench referred to the judgment passed in State of Punjab and Others vs. Inder Singh and Others, reported in (1997) 8 SCC 372, to explain the concept of deputation. According to the judgment, a government official cannot be deputed on an assignment without his consent.

The Case

Dr. Ashok Anand, Professor of Head of Department, Gynaecology and Obstetrics at the Grant Government Medical College and Sir JJ Group of Hospitals was deputed to the Swami Ramanand Teerth Rural Government Medical College, Ambejogai, by the Director. He invoked the Epidemic Act to facilitate the transfer on August 5, 2020.

Dr. Anand challenged the order before Maharashtra Administrative Tribunal (MAT), which ruled in his favour on January 9, 2021. The Director, TP Lahane, then approached the High Court against MAT's order.

Dr Anand, through his lawyers had contended that the Director, in his capacity as a Nodal Officer under the ED Act, did not have the power to pass such an order. Advocate Sonal and Filji Frederick argued that even though the order may have read as if Dr Anand was being assigned to a rural hospital, it was actually an order of transfer. And as per the Transfer Act only the Chief Minister was allowed to order the transfer of an officer of his stature. The powers under the ED Act cannot be exercised in a way that breach the Transfers Act, they submitted.

Advocate General Ashutosh Kumbhakon appearing on behalf of the State and the Director, argued that Dr Anand was unable to attend to patients at JJ Hospital owing to his ill health. Following complaints received, an Inquiry Committee was set up and he was provided with a questionnaire. Since it was found that a lack of coordination on Dr Anand's part was affecting management of patients, the Director was within his jurisdiction to take measures in preventing the outbreak of the pandemic and depute Dr. Anand to a rural hospital as an administrative exigency.

The Bench, however, found substance in Dr Anand's argument. It observed that the ED Act and the Transfer Act "operate in completely separate fields." Where the primary object of the ED Act is to prevent spread of an epidemic and authorizes measures to be taken, those would not include an officer's transfer.

"Shifting an officer out from a post held by him except in accordance with the provisions governing his employment, we are persuaded to hold, is not even an implied power that the Director possesses in terms of the ED Act.

The bench further observed that the Director's power under the ED Act cannot have total disregard to the Transfers Act, "In order that exercise of power under a general law does not conflict with a special law in a case of the present nature, in our considered view, the power of the Director, if any, as the Empowered Officer under the ED Act could not have been exercised in complete disregard/derogation of the Transfer Act."

The Court observed that if an inquiry committee could be set up in May 2020, and an order was passed months later, in August, it "defies logic as to why the Chief Minister was not consulted" before passing the order.

The Court further found malice in law with the transfer.

"The Director disguised a pure and simple transfer order and cloaked it by referring it to be an order of deputation," the judgment read.