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IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P. (S) No. 7295 of 2023

----

Dr. Pashupati Nath Priyadarshi, aged about 38 years son of

Sri Suresh Paswan, IMO Grade-I, ESIC Hospital, Adityapur,

resident of Quarter no. 2201, Sector-IV/A Bokaro Steel City,

Bokaro, P.O. & P.S. Sector-4, Bokaro Steel City, Dist: Bokaro,

presently residing at P.O. & P.S.: Adityapur, Dist:

SeraikelaKharsawan (Jharkhand). … … Petitioner

Versus

1.The Union of India, through the Secretary, Ministry of

Labour & Employment, Govt. of India, Shram Shakti

Bhawan, Rafi Marg, P.O. & P.S. and Dist: New Delhi.

2.The Chairman, Employee’s State Insurance Corporation,

Ministry of Labour and Employment, Govt. of India,

Panchdeep Bhawan, CIG Marg, P.O. & P.S. & Dist: New

Delhi.

3.The Director General, Employee’s State Insurance

Corporation, Ministry of Labour and Employment, Govt. of

India, Panchdeep Bhawan, CIG Marg, P.O. & P.S. & Dist: New

Delhi.

4.The Financial Commissioner, Employee’s State Insurance

Corporation, Ministry of Labour and Employment, Govt. of

India, Panchdeep Bhawan, CIG Marg, P.O. & P.S. & Dist: New

Delhi.

5.The Deputy Director (Medical Administration), Office of the

Director General, Employee’s State Insurance Corporation,

Ministry of Labour and Employment, Govt. of India,

Panchdeep Bhawan, CIG Marg, P.O. & P.S. & Dist: New

Delhi.

6.The Medical Superintendent, Employee’s State Insurance

Corporation, Ministry of Labour and Employment, Govt. of

India, Adityapur, P.O. & P.S.: Adityapur, Dist

SeraikelaKharsawan (Jharkhand).

7.The Assistant Director, (Medical Administration),

Employee’s State Insurance Corporation, Ministry of Labour

and Employment, Govt. of India, Panchdeep Bhawan, CIG

Marg, P.O. & P.S. & Dist: New Delhi.

… … Respondents

with

W.P. (S) No. 7303 of 2023

----

Dr. Anita Kumari, aged about 43 years, wife of Dr. Manoj

Kumar Paswan, Chief Medical Officer, ESIC Hospital,

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Namkum, Ranchi, resident of Kajari, Daltonganj, Nawdhia,

P.O. & P.S.: Daltonganj, Dist. Palamau.

… … Petitioner

Versus

1.The Union of India, through the Secretary, Ministry of

Labour & Employment, Govt. of India, Shram Shakti

Bhawan, Rafi Marg, P.O. & P.S. and Dist: New Delhi.

2.The Chairman, Employee’s State Insurance Corporation,

Ministry of Labour and Employment, Govt. of India,

Panchdeep Bhawan, CIG Marg, P.O. & P.S. & Dist: New

Delhi.

3.The Director General, Employee’s State Insurance

Corporation, Ministry of Labour and Employment, Govt. of

India, Panchdeep Bhawan, CIG Marg, P.O. & P.S. & Dist: New

Delhi.

4.The Finance Commissioner, Employee’s State Insurance

Corporation, Ministry of Labour and Employment, Govt. of

India, Panchdeep Bhawan, CIG Marg, P.O. & P.S. & Dist: New

Delhi.

5.The Deputy Director (Medical Administration), Office of the

Director General, Employee’s State Insurance Corporation,

Ministry of Labour and Employment, Govt. of India,

Panchdeep Bhawan, CIG Marg, P.O. & P.S. & Dist: New

Delhi.

6.The Regional Director, Employee’s State Insurance

Corporation, Ministry of Labour and Employment, Govt. of

India, Ranchi, P.O. & P.S. Ranchi, Dist: Ranchi.

7.The Medical Superintendent, Employee’s State Insurance

Corporation Hospital, Ministry of Labour and Employment,

Govt. of India, Namkum, P.O. & P.S.: Namkum, Dist: Ranchi

(Jharkhand).

8.The Assistant Director, (Medical Administration),

Employee’s State Insurance Corporation, Ministry of Labour

and Employment, Govt. of India, Panchdeep Bhawan, CIG

Marg, P.O. & P.S. & Dist: New Delhi.

9.The Medical Commissioner, Employee’s State Insurance

Corporation, Ministry of Labour and Employment, Govt. of

India, Panchdeep Bhawan, CIG Marg, P.O. & P.S. & Dist: New

Delhi.

… … Respondents

with

W.P. (S) No. 7343 of 2023

----

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Dr. Mithlesh Kumar Singh, aged about 41 years, son of

Kameshwar Singh, Chief Medical Officer, ESIC Hospital,

Adityapur, resident of Qtr. No. 219/2/3, Road No. 14, Near

Ram Mandir, Adityapur, P.O. & P.S. Adityapur, Dist.-

SeraikelaKharswan (Jharkhand). … … Petitioner

Versus

1.The Union of India, through the Secretary, Ministry of

Labour & Employment, Govt. of India, Shram Shakti

Bhawan, Rafi Marg, P.O. & P.S. and Dist: New Delhi.

2.The Chairman, Employee’s State Insurance Corporation,

Ministry of Labour and Employment, Govt. of India,

Panchdeep Bhawan, CIG Marg, P.O. & P.S. & Dist: New

Delhi.

3.The Director General, Employee’s State Insurance

Corporation, Ministry of Labour and Employment, Govt. of

India, Panchdeep Bhawan, CIG Marg, P.O. & P.S. & Dist: New

Delhi.

4.The Finance Commissioner, Employee’s State Insurance

Corporation, Ministry of Labour and Employment, Govt. of

India, Panchdeep Bhawan, CIG Marg, P.O. & P.S. & Dist: New

Delhi.

5.The Deputy Director (Medical Administration), Office of the

Director General, Employee’s State Insurance Corporation,

Ministry of Labour and Employment, Govt. of India,

Panchdeep Bhawan, CIG Marg, P.O. & P.S. & Dist: New

Delhi.

6.The Regional Director, Employee’s State Insurance

Corporation, Ministry of Labour and Employment, Govt. of

India, Ranchi, P.O. & P.S. Ranchi, Dist: Ranchi.

7.The Medical Superintendent, Employee’s State Insurance

Corporation, Ministry of Labour and Employment, Govt. of

India, Adityapur, P.O. & P.S.: Adityapur, Dist

SeraikelaKharsawan (Jharkhand).

8.The Assistant Director, (Medical Administration),

Employee’s State Insurance Corporation, Ministry of Labour

and Employment, Govt. of India, Panchdeep Bhawan, CIG

Marg, P.O. & P.S. & Dist: New Delhi.

9.The Medical Commissioner, Employee’s State Insurance

Corporation, Ministry of Labour and Employment, Govt. of

India, Panchdeep Bhawan, CIG Marg, P.O. & P.S. & Dist: New

Delhi.

… … Respondents

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CORAM :HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

------

For the Petitioner : Mr. Mahesh Tewari, Advocate

For the Res. No. 1-UOI : Mrs. Bakshi Vibha, Sr. P.C

For Res. 2 to 5-ESIC : Mr. Ashutosh Anand, Advocate

Mr. Indu Paraskar, Advocate

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Order No. 04 : Dated 17

th

January, 2024

Per Sujit Narayan Prasad, J:

1. Since similar issued are involved in these three writ

petitions, hence with the consent of learned counsel for the

parties, they are taken up together for disposal.

Prayer in W.P. (S) No. 7295 of 2023

2. The instant writ petition has been filed for quashing

order dated 23.11.2023 passed by learned Central

Administrative Tribunal, Patna in O.A. No. 885 of 2023, by

which the tribunal refused to grant interim stay in respect of

order dated 20.05.2023 of respondent-ESIC transferring the

applicant from ESIC Hospital, Adityapur to DCBO,

Daltonganj.

Prayer in W.P. (S) No. 7303 of 2023

3. The instant writ petition has been filed for quashing

order dated 23.11.2023 passed by learned Central

Administrative Tribunal, Patna in O.A. No. 883 of 2023, by

which the tribunal refused to grant interim stay in respect of

order dated 20.05.2023 of respondent-ESIC transferring the

applicant from ESIC Hospital, Ranchi to ESIC Hospital,

Rourkela.

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Prayer in W.P. (S) No. 7343 of 2023

4. The instant writ petition has been filed for quashing

order dated 23.11.2023 passed by learned Central

Administrative Tribunal, Patna in O.A. No. 884 of 2023, by

which the tribunal refused to grant interim stay in respect of

order dated 20.05.2023 of ESIC transferring the applicant

from ESIC Hospital, Adityapur to ESIC Hospital, Ranchi.

Brief facts of the case in W.P. (S) No. 7295 of 2023

5. The petitioner- Dr. Pushupati Nath Priyadarshi joined

Employees State Insurance Corporation (ESIC) on 10.11.2016

as Insurance Medical Officer, Grade-II and at present is

posted at ESIC Hospital, Adityapur as IMO Grade-I.

6. The respondent-Employees’ State Insurance Corporation

came with a Transfer/Posting Policy on the subject matter

‘Transfer/posting policy for clinical postings of doctors in ESI

Corporation‟ on 20.06.2022, according to which ESIC staffs

were asked to submit five options for the annual transfer as

per his/her choice. Accordingly, the applicant mentioned

ESIC Adityapur, R.O. Ranchi, DCBO Ghatshila, DCBO

Hazaribagh and ESIC Model Hospital, Ranchi as his options

priority-wise. But he was transferred to DCBO, Daltonganj

vide transfer order dated 20.05.2023 de hors of five station of

his choice violating the policy decision, by way of ESIC

circular dated 20.06.2022 taken by the respondent-ESIC, of

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completion of maximum extended period of nine years at one

station i.e., ESIC Hospital, Adityapur. Being aggrieved he

submitted a representation before the authority concerned as

also approached the tribunal by filing O.A. No. 472 of 2023.

The original application was disposed of vide order dated

21.09.2023 with direction upon the respondent-authorities to

keep the transfer order in abeyance till a decision is taken on

applicant’s representation. However, the representation of the

applicant was rejected vide order dated 11.10.2023.

7. Being aggrieved thereof, the petitioner preferred O.A. No.

885 of 2023 which was dismissed vide order dated

23.11.2023 refusing to grant interim stay in respect of order

dated 20.05.2023 of respondent-ESIC by which the applicant

was transferred from ESIC Hospital, Adityapur to DCBO,

Daltonganj, hence, the instant writ petition.

Brief facts of the case in W.P. (S) No. 7303 of 2023

8. The petitioner-Dr. Anita Kumari, joined Employees State

Insurance Corporation (ESIC) on 30.03.2012 as Insurance

Medical Officer, Grade-II at ESIC Hospital, Adityapur,

Jharkhand and at present is posted as Chief Medical Officer

(CMO) at ESIC Hospital, Namkum, Ranchi.

9. The respondent-ESIC came with a Transfer/Posting

Policy on 20.06.2022, according to which ESIC staffs were

asked to submit five options for the annual transfer.

Accordingly, the applicant mentioned ESIC Model Hospital,

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Namkum, Ranchi R.O. Ranchi, DCBO, Hazaribagh, ESIC

Hospital Adityapur and ESIC Model Hospital, Rourkela.

10. It is the case of the petitioner that the petitioner’s

husband is an Associate Professor in the Department of

Pathology at RIMS Ranchi but the applicant-petitioner was

transferred from ESICH, Ranchi to ESICH, Rourkela in

violation of the policy decision taken by the respondent-ESIC

itself. Being aggrieved thereof, the petitioner raised her

grievance by submitting representation as also by

approaching the Tribunal by filing O.A. No. 473 of 2023. The

original application was disposed of vide order 21.09.2023

with direction upon the respondent-authorities to keep the

transfer order in abeyance till a decision is taken on

applicant’s representation. However, the representation of the

applicant was rejected vide order dated 11.10.2023 on the

ground that the applicant had been posted at ESIC Hospital,

Ranchi for the last twelve years.

11. Being aggrieved thereof, the petitioner preferred O.A. No.

883 of 2023 which was dismissed vide order dated

23.11.2023 refusing to grant interim stay in respect of order

dated 20.05.2023 of respondent-ESIC by which the applicant

was transferred from ESIC Hospital, Ranchi to ESIC ,

Rourkella, hence the instant writ petition.

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Brief facts of the case in W.P. (S) No. 7343 of 2023

12. The petitioner-Dr. Mithilesh Kumar Singh, joined

Employees State Insurance Corporation (ESIC) on 12.02.2010

as Insurance Medical Officer, Grade-II at ESIC Hospital,

Adityapur, Jharkhand and at present is posted as Chief

Medical Officer (CMO) at ESIC Hospital, Adityapur.

13. The respondent-ESIC came with a Transfer/Posting

Policy on 20.06.2022, according to which ESIC staffs were

asked to submit five options for the annual transfer.

Accordingly, the applicant mentioned ESICH Adityapur,

DCBO-Ghatshila ESIC Model Hospital, Namkum, Ranch i

R.O. Ranchi, DCBO, Hazaribagh.

14. The wife of the appellant, namely, Dr. Sweta Kumari

since is working as Deputy Manager (Medical Services) at

Uranium Corporation of India Limited Hospital at Tarumdih,

Jamshedpur, as he has opted first choice at ESIC Hospital,

Adityapur but he was transferred to ESIC, Ranchi.

15. Being aggrieved thereof, the petitioner raised grievance

by submitting representation as also by approaching the

Tribunal by filing O.A. No. 471 of 2023 which was disposed of

on 21.09.2023 with direction to the respondent-authorities to

keep the transfer order in abeyance till a decision is taken on

applicant’s representation. However, the representation of the

applicant was rejected vide order dated 11.10.2023 on the

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ground that the applicant had been posted at ESIC Hospital,

Ranchi for the last twelve years.

16. Being aggrieved thereof, the petitioner preferred O.A. No.

884 of 2023 which was dismissed vide order dated

23.11.2023 refusing to grant interim stay in respect of order

dated 20.05.2023 of respondent-ESIC by which the applicant

was transferred from ESIC Hospital, Adityapur to ESIC,

Ranchi. Aggrieved thereof, the applicant has preferred the

instant writ petition.

Argument advanced on behalf of petitioners:

17. Mr. Mahesh Tewari, learned counsel for the petitioners

in all the writ petitions has submitted by raising the following

issues, with a separate ground in W.P. (S) No. 7303 of 2023

and W.P.(S) No. 7343 of 2023 of posting by way of transfer on

the basis of provision of the guideline which provides that the

spouse is to be posted at the same place where the husband

is posted:

I. The respondents-Employees State Insurance have

framed out a guideline/policy decision/policy of

transfer according to which preparatory work of

‘Annual General Transfer’ is to be started from 1

st

December of each year and is to be conducted stage

by stage so as to come with a final order by 15

th day

of March of each year. Herein no exercise in terms of

the aforesaid policy decision has been undertaken

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and without following the action which is to be

taken for transfer all of a sudden order of transfer

has been passed on 20.05.2023. Hence, the order of

transfer issued contrary to the aforesaid policy

decision is liable to be quashed and set aside.

II. The said policy decision contains the option to be

given of five stations. The petitioner in W.P. (S) No.

7295 of 2023, in exercise of said policy decision,

who was posted at ESIC, Adityapur had given option

of five of his choice but the committee did not

consider the option which was opted by him and de

hors the rule transferred the petitioner to DCBO,

Daltonganj.

III. Learned counsel for the petitioner in W.P. (S) No.

7295 of 2023 further submits that the transfer order

was also in violation of DoPT guidelines as

applicant-writ petitioner has not completed the

extended tenure of nine years [6 years plus

extension of 3 years], as per para 5 of the circular

dated 27.12.2022. But herein there is no

consideration by the respondents-ESIC has been

given by allowing the petitioner of W.P. (S) No. 7295

of 2023 to work for the extended period of total nine

years even though he performed the services with

utmost satisfaction to the authority concerned and

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contrary to the mandate of such policy decision he

was transferred to the place which was even not

given in the option exercised by him.

IV. The contention has been raised that once the

policy decision has been framed governing the

decision to be taken for transfer then it is bounden

duty of the respondents-authority to strictly adhere

to the conditions contained therein but it is evident,

as would be evident from the objection so raised by

making representation before the committee in

terms of order passed in earlier occasion by learned

tribunal in O.A. No. 472 of 2023, O.A. No. 473 of

2023 and O.A. No. 471 of 2023 respectively, but

there is no consideration of the above fact by the

said committee hence the order passed by the

committee is cryptic and without consideration of

the material fact agitated before it.

V. The writ petitioners in W.P. (S) No. 7303 of 2023

and W.P. (S) No. 7343 of 2023 have raised the issue

of posting of spouse at one station on the ground

that as per guidelines as contained in circular dated

30.09.2009 of DoPT, the husband and wife is to be

posted together. Learned counsel for the petitioner

has submitted that the husband of petitioner in

W.P. (S) No. 7303 of 2023 is an Associate Professor

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in the Department of Pathology in RIMS, Ranchi and

for cases in which one of the spouse is State

Government employee and other Central

Government employee the Office Memorandum

provides that ‘the spouse employed under the

Central Government may apply to the competent

authority and the competent authority may post the

said officer to the station if there is no post in that

station to the State where the other spouse is

posted. Learned counsel for the petitioner has

submitted that the respondents-ESIC since has

adopted the said DoPT guidelines, as such since the

applicant-petitioner is an Associate Professor in

RIMS, Ranchi and his post is non-transferable

hence the respondents-ESIC taking into account the

predicament of the petitioner ought to have posted

the petitioner at Ranchi or at least within the

territory of Jharkhand but she has been transferred

to another State, which is in utter violation of

guidelines as issued by DoPT.

VI. Likewise, the wife of petitioner in W.P. (S) No.

7343 of 2023 is working as Deputy Manager

(Medical Services) at Uranium Corporation of India

Limited Hospital at Tarumdih, Jamshedpur hence,

which is non-transferrable but in violation of

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guidelines as issued by the DoPT, the petitioner was

to be posted at Adityapur or nearer to Jamshedpur

but in utter violation of such policy he was

transferred to Ranchi.

VII. It has further been submitted by referring the

personal difficulties which the writ petitioner of W.P.

(S) No. 7303 of 2023 is facing that is she is having

three children and younger one is three years but

there is no sympathetic consideration on that count

also.

VIII. To buttress his argument, Mr. Mahesh Tewari,

learned counsel for the petitioners has relied upon

judgments rendered in the case of Bank of India

Vs. Jagjit Singh Mehta [(1992) 1 SCC 306] and

S.K. Nausad Rahmand & Ors vs. Union of India

& Ors [(2022) 12 SCC 1].

IX. It has been contended that the learned tribunal

ought to have taken into consideration these aspects

of the matter while considering the Interlocutory

Applications filed for stay of order of transfer but the

same has been refused to be granted. Therefore, it

requires interference by this Court.

18. Per contra, Mr. Ashutosh Anand, learned counsel for the

respondents-ESIC has defended the order passed by learned

tribunal inter alia on the following grounds:

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I. It has been contended that the learned tribunal

while refusing to grant ad interim stay has not

committed error reason being that the main prayer

in all the three writ petitions are for quashing of

order of transfer and hence if the order of transfer

will be stayed at this stage it will amount to allowing

the whole petition at the interim stage itself without

providing an opportunity to defend and by filing

written statement.

II. The writ petitioners are claiming the stay of order

of transfer based upon the policy decision but the

said policy decision cannot be said to be mandatory

in nature.

III. However, he is fair enough to submit that since the

learned tribunal has called upon the respondent-

ESIC to file written statement hence the same shall

be filed for adjudication of the issues/grounds which

have been raised by learned counsel for the

petitioners.

IV. He has further submitted that since these writ

petitions have been filed challenging the legality and

propriety of the impugned orders passed by the

learned tribunal refusing to pass ad interim stay and

as such the same is being defended by refuting the

argument advanced by learned counsel for the

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petitioners on the ground that the transfer being the

incidence of service and as such none of the

employees has vested right to be posted on a

particular station for years together.

19. The learned tribunal if taking into consideration the

aforesaid fact has declined to grant ad interim stay so as to

decide the issue finally for which the respondents have been

called upon to file written statement which cannot be said to

suffer from error.

20. We have heard learned counsel for the parties, perused

the impugned orders and circular/policy decision upon which

the parties have put reliance as also the judgment cited by

learned counsel for the petitioners.

21. This Court needs to refer herein that the power which is

being exercised under judicial review under Article 226 of the

Constitution of India so as to assess the legality and propriety

of the impugned order as to whether the said order is

suffering from any apparent error on record warranting

judicial review of the same. The learned Tribunal has passed

order refusing to pass ad interim stay of order of transfer.

22. This Court is not entering into the merit of the issue

since the main issue is lying pending for consideration before

learned tribunal which is to be adjudicated as per the date

fixed since the contesting respondents-ESIC have been called

upon to file written statement. If at this stage this Court will

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adjudicate the issue then the same will amount to usurp the

power of the learned tribunal which is the Court of first

instance so far as the case of employees/officers of the

Central Government or concerned recruitment as per the

stipulation made under Section 14 of the Centra l

Administrative Act, 1985 is concerned as also in view of the

judgment rendered in the case of L Chandra Kumar Vs.

Union of India & Others as reported in (1997) 3 SCC 261.

Therefore, we are not delving upon the issue on merit as has

been pointed out by Mr. Mahesh Tewari, learned counsel for

the petitioners as referred hereinabove, rather we are going

into the propriety of the said order.

23. This Court before considering the aforesaid facts deems

it fit and proper to refer the principle governing the field in

passing the ad interim stay. The Hon’ble Apex Court in the

case of Deoraj v. State of Maharashtra & Ors , [(2004) 4

SCC 697] at paragraph 10 held as under:

“10. Ordinarily, this Court in its exercise of jurisdiction

under Article 136 of the Constitution does not interfere with

the orders of interim nature passed by the High Court or

tribunals. This is a rule of discretion developed by

experience, inasmuch as indulgence being shown by this

Court at an interim stage of the proceedings pending before a

competent court or tribunal results in duplication of

proceedings; while the main matter is yet to be heard by the

court or tribunal seized of the hearing and competent to do

so, valuable time and energy of this Court are consumed in

adjudicating upon a controversy the life of which will be

coterminous with the life of the main matter itself which is

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not before it and there is duplication of pleadings and

documents which of necessity shall have to be placed on the

record of this Court as well. However, this rule of discretion

followed in practice is by way of just self-imposed

discipline.”

24. Likewise, the Hon’ble Apex Court in the case of Bombay

Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action

Group [(2005) 5 SCC 61], at paragraph 24 has been held as

under:

“24. The courts, however, have to strike a balance between

two extreme positions viz. whether the writ petition would

itself become infructuous if interim order is refused, on the

one hand, and the enormity of losses and hardships which

may be suffered by others if an interim order is granted,

particularly having regard to the fact that in such an event,

the losses sustained by the affected parties thereby may not

be possible to be redeemed.”

25. Further the Hon’ble Apex Court in the case of M.

Gurudas & Ors Vs. Rasaranjan & Ors [(2006) 8 SCC 367],

at paragraphs 19 and 20 held as under:

“19. A finding on “prima facie case” would be a finding of

fact. However, while arriving at such a finding of fact, the

court not only must arrive at a conclusion that a case for trial

has been made out but also other factors requisite for grant

of injunction exist. There may be a debate as has been

sought to be raised by Dr. Rajeev Dhavan that the decision of

the House of Lords in American Cyanamid Co. v. Ethicon

Ltd. [(1975) 1 All ER 504 : 1975 AC 396 : (1975) 2 WLR 316

(HL)] would have no application in a case of this nature as

was opined by this Court in Colgate Palmolive (India)

Ltd. v. Hindustan Lever Ltd. [(1999) 7 SCC 1] and S.M.

Dyechem Ltd. v. Cadbury (India) Ltd. [(2000) 5 SCC 573] but

we are not persuaded to delve thereinto.

20. We may only notice that the decisions of this Court

in Colgate Palmolive [(1999) 7 SCC 1] and S.M. Dyechem

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Ltd. [(2000) 5 SCC 573] relate to intellectual property rights.

The question, however, has been taken into consideration by

a Bench of this Court in Transmission Corpn. of A.P.

Ltd. v. Lanco Kondapalli Power (P) Ltd. [(2006) 1 SCC 540]

stating: (SCC pp. 552-53, paras 36-40)

“36. The respondent, therefore, has raised triable

issues. What would constitute triable issues has

succinctly been dealt with by the House of Lords in its

well-known decision in American Cyanamid

Co. v. Ethicon Ltd. [(1975) 1 All ER 504 : 1975 AC 396 :

(1975) 2 WLR 316 (HL)] holding: (All ER p. 510c-d)

„Your Lordships should in my view take this

opportunity of declaring that there is no such rule. The

use of such expressions as “a probability”, “a prima

facie case”, or “a strong prima facie case” in the

context of the exercise of a discretionary power to

grant an interlocutory injunction leads to confusion as

to the object sought to be achieved by this form of

temporary relief. The court no doubt must be satisfied

that the claim is not frivolous or vexatious; in other

words, that there is a serious question to be tried.‟

It was further observed: (All ER pp. 511b-c & 511j)

„Where other factors appear to be evenly balanced

it is a counsel of prudence to take such measures as

are calculated to preserve the status quo. If the

defendant is enjoined temporarily from doing

something that he has not done before, the only effect

of the interlocutory injunction in the event of his

succeeding at the trial is to postpone the date at which

he is able to embark on a course of action which he

has not previously found it necessary to undertake;

whereas to interrupt him in the conduct of an

established enterprise would cause much greater

inconvenience to him since he would have to start

again to establish it in the event of his succeeding at

the trial.

***

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The factors which he took into consideration, and in

my view properly, were that Ethicon's sutures XLG

were not yet on the market; so that had no business

which would be brought to a stop by the injunction; no

factories would be closed and no workpeople would be

thrown out of work. They held a dominant position in

the United Kingdom market for absorbable surgical

sutures and adopted an aggressive sales policy.‟

37. We are, however, not oblivious of the subsequent

development of law both in England as well as in this

jurisdiction. The Chancery Division in Series 5

Software v. Clarke [(1996) 1 All ER 853 (Ch D)] opined:

(All ER p. 864c-e)

„In many cases before American Cyanamid [(1975)

1 All ER 504 : 1975 AC 396 : (1975) 2 WLR 316 (HL)]

the prospect of success was one of the important

factors taken into account in assessing the balance of

convenience. The courts would be less willing to

subject the plaintiff to the risk of irrecoverable loss

which would befall him if an interlocutory injunction

was refused in those cases where it thought he was

likely to win at the trial than in those cases where it

thought he was likely to lose. The assessment of the

prospects of success therefore was an important factor

in deciding whether the court should exercise its

discretion to grant interlocutory relief. It is this

consideration which American Cyanamid [(1975) 1 All

ER 504 : 1975 AC 396 : (1975) 2 WLR 316 (HL)] is said

to have prohibited in all but the most exceptional case.

So it is necessary to consider with some care what

was said in the House of Lords on this issue.‟

38. In Colgate Palmolive (India) Ltd. v. Hindustan

Lever Ltd. [(1999) 7 SCC 1] this Court observed that

Laddie, J. in Series 5 Software [(1996) 1 All ER 853 (Ch

D)] had been able to resolve the issue without any

departure from the true perspective of the judgment

in American Cyanamid [(1975) 1 All ER 504 : 1975 AC

396 : (1975) 2 WLR 316 (HL)] . In that case, however, this

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Court was considering a matter under the Monopolies and

Restrictive Trade Practices Act, 1969.

39. In S.M. Dyechem Ltd. v. Cadbury (India)

Ltd. [(2000) 5 SCC 573] Jagannadha Rao, J. in a case

arising under Trade and Merchandise Marks Act, 1958

reiterated the same principle stating that even the

comparative strength and weaknesses of the parties may

be a subject-matter of consideration for the purpose of

grant of injunction in trade mark matters stating: (SCC p.

591, para 21)

„21. … Therefore, in trade mark matters, it is now

necessary to go into the question of “comparable

strength” of the cases of either party, apart from

balance of convenience. Point 4 is decided

accordingly.‟

40. The said decisions were noticed yet again in a

case involving infringement of trade mark in Cadila

Health Care Ltd. v. Cadila Pharmaceuticals Ltd. [(2001) 5

SCC 73] ”

26. It is evident from the aforesaid proposition of law that

while passing ad interim stay three conditions are required to

be fulfilled i.e., the litigant concerned has to make out a

prima facie case, the balance of convenience and the

irreparable loss.

27. The meaning of prima facie case is that litigant has to

make out a prima facie case to establish the fact that he is

having a case on merit. But herein we are of the view that

since the matter is of transfer, wherein the ground has been

taken of non-adherence of the policy decision. The

requirement would be to decide the issue as to whether the

said policy decision can be construed to have a statutory

force or not. The transfer being the incidence of service

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certainly can be interfered with if there is violation of the

statutory provision or the order of transfer is without any

jurisdiction etc.

28. We have found from the pleading that no such ground

has been taken rather ground has been taken for non-

adherence of policy decision particularly allowing the writ

petitioner to stay for extended period of nine years in the first

writ petition while in other writ petitioners ground of spouse

to work at one station has been taken.

29. This Court, therefore, is of the view that based upon the

judgment rendered by Hon’ble Apex Court if at this stage the

order of transfer will be kept in abeyance the same being the

main prayer in the original applications the entire original

application will be said to be allowed at this stage, as has

been held by Hon'ble Apex Court in the case of State of

Uttar Pradesh and Others v. Sandeep Kumar Balmiki

and Others reported in (2009) 17 SCC 555 wherein at

paragraph 5 it has been held which is being quoted and

referred hereunder as :-

“5. In our view, the interim order granted by the

High Court staying the order of termination could

not be passed at this stage in view of the fact that if

such relief is granted at this stage, the writ petition

shall stand automatically allowed without

permitting the parties to place their respective cases

at the time of final hearing of the writ petition. … …

….”

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30. Therefore, this Court is of the view that the petitioner

has got no prima facie case for passing ad interim stay of

transfer order at this stage.

31. So far as the balance of convenience is concerned, the

said word means that the convenience is to be adjudged that

who will be at loss. Certainly, transfer being the incidence of

service and hence the prerogative lies with the employer who

posts one or the other employees as per the administrative

exigency. The balance of convenience is to be adjudicated

along with the principle of irreparable loss or the loss said to

be irreversible. Irreversible loss will be said to be loss which

cannot be restored as per meaning of irreversible which has

been decided by Hon’ble Apex Court in the case of Best

Sellers Retail (India) (P) Ltd. v. Aditya Birla Nuvo Ltd.,

(2012) 6 SCC 792 : wherein it has been held as under:

“29. Yet, the settled principle of law is that even where

prima facie case is in favour of the plaintiff, the Court will

refuse temporary injunction if the injury suffered by the

plaintiff on account of refusal of temporary injunction was

not irreparable.

30. In Dalpat Kumar v. Prahlad Singh [(1992) 1 SCC 719]

this Court held: (SCC p. 721, para 5)

“5. … Satisfaction that there is a prima facie case by itself is

not sufficient to grant injunction. The Court further has to

satisfy that non-interference by the Court would result in

„irreparable injury‟ to the party seeking relief and that there

is no other remedy available to the party except one to grant

injunction and he needs protection from the consequences of

apprehended injury or dispossession. Irreparable injury,

however, does not mean that there must be no physical

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possibility of repairing the injury, but means only that the

injury must be a material one, namely, one that cannot be

adequately compensated by way of damages.”

To quote the words of Alderson, B. in Attorney

General v. Hallett [(1857) 16 M & W 569 : 153 ER 1316] : (ER

p. 1321)

“… I take the meaning of irreparable injury to be that

which, if not prevented by injunction, cannot be

afterwards compensated by any decree which the court

can pronounce in the result of the cause.”

32. The Hon’ble Apex Court in the case of Ajay Mohan &

Ors Vs. H.N. Rai & Ors. [(2008) 2 SCC 507] at paragraph 21

held as under:

“21. The plaintiffs, while praying for the relief of interim

injunction, were bound to establish a prima facie case. They

were also bound to show that the balance of convenience lay

in their favour and unless the prayer is granted, they will

suffer an irreparable injury.”

33. The Hon’ble Apex Court in the case of Zenit Mataplast

Private Limited Vs. State of Maharasthra & Ors [(2009)

10 SCC 388], at paragraph 30, 31 and 37 held as under:

“30. Interim order is passed on the basis of prima facie

findings, which are tentative. Such order is passed as a

temporary arrangement to preserve the status quo till the

matter is decided finally, to ensure that the matter does not

become either infructuous or a fait accompli before the final

hearing. The object of the interlocutory injunction is to protect

the plaintiff against injury by violation of his right for which

he could not be adequately compensated in damages

recoverable in the action if the uncertainty were resolved in

his favour at the trial (vide Anand Prasad

Agarwalla v. Tarkeshwar Prasad [(2001) 5 SCC 568] ,

and State of Assam v. Barak Upatyaka D.U. Karmachari

Sanstha [(2009) 5 SCC 694 : (2009) 2 SCC (L&S) 109] ).

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31. Grant of an interim relief in regard to the nature and

extent thereof depends upon the facts and circumstances of

each case as no straitjacket formula can be laid down. There

may be a situation wherein the respondent-defendant may

use the suit property in such a manner that the situation

becomes irretrievable. In such a fact situation, interim relief

should be granted (vide M. Gurudas v. Rasaranjan [(2006) 8

SCC 367 : AIR 2006 SC 3275]

and Shridevi v. Muralidhar [(2007) 14 SCC 721] ). Grant of

temporary injunction is governed by three basic principles i.e.

prima facie case; balance of convenience; and irreparable

injury, which are required to be considered in a proper

perspective in the facts and circumstances of a particular

case. But it may not be appropriate for any court to hold a

mini-trial at the stage of grant of temporary injunction

[vide S.M. Dyechem Ltd. v. Cadbury (India) Ltd. [(2000) 5

SCC 573 : AIR 2000 SC 2114] and Anand Prasad

Agarwalla [(2001) 5 SCC 568] , SCC p. 570, para 6].

37. Thus, the law on the issue emerges to the effect that

interim injunction should be granted by the court after

considering all the pros and cons of the case in a given set of

facts involved therein on the risk and responsibility of the

party or, in case he loses the case, he cannot take any

advantage of the same. The order can be passed on settled

principles taking into account the three basic grounds i.e.

prima facie case, balance of convenience and irreparable

loss.”

34. We, on scrutiny of the word irreparable or irreversible

loss and coming back to the facts of the present case, are of

the view that if the petitioners will assume charge on the

place of transferred place of posting and in case the learned

tribunal will come to the conclusion that the order of transfer

is per se illegal or suffers from patent illegality and in

consequence thereof it will be quashed and set aside then the

consequence of the same will be that the status quo ante so

- 25 -

far as the petitioners are concerned will be restored. Thus, in

that view of the matter we are further of the view that said

loss cannot be said to be irreversible which cannot be

restored rather the moment the order will be quashed and set

aside the status quo ante will be operative meaning thereby

all the petitioners will be in a position to render their duty in

the place where they were prior to order of transfer.

Therefore, this Court is of the view that the balance of

convenience and irreparable loss is to be read together in the

case of matter of transfer and taking the same into

consideration is of the view that not granting ad interim stay

cannot be said to be irreparable.

35. Therefore, in the entirety of facts and circumstances of

the case, this Court is of the view that the learned counsel for

the petitioners could not be able make out a case of

availability of three conditions for granting ad interim stay.

36. This Court considering the law laid down in the case of

L. Chandra Kumar (supra) wherein the power which is to be

exercised by the High Court under Article 226 or judicial

review has been dealt with. The power of judicial review can

only be exercised if the order assailed suffers from error

apparent on the face of record. But based upon the aforesaid

reasoning we are of the view that no error on the face of

record has been pointed out and even the principle for grant

of ad interim stay is not available. Therefore, this Court is of

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the view that the impugned orders needs no interference by

this Court.

37. Accordingly, the writ petitions stand dismissed.

38. Since the matter is of transfer and the same requires

early consideration, considering the same since the learned

tribunal has called upon the respondent-ESIC to file written

statement, which as per submission advanced by Mr.

Ashutosh Anand, learned counsel for the respondent-ESIC,

shall be filed in advance on or before the date fixed before the

tribunal. Further undertaking has been given by learned

counsel for the respondents-ESIC that no adjournment shall

be taken on that date considering the urgency in the matter.

39. This Court considering the aforesaid fact requests

learned tribunal to decide the issue preferably on the same

date on its own merit.

40. The writ petitions accordingly stand disposed of.

(Sujit Narayan Prasad, J.)

(Pradeep Kumar Srivastava, J.)

Alankar/

A.F.R.