In an embarrassment to Dr Tatyarao Lahane, head of Directorate of Medical Education & Research (DMER), the Bombay High Court held that his orders transferring a senior gynaecologist of JJ Hospital were arbitrary and beyond his powers. A bench of Chief Justice Dipankar Datta and Justice Girish Kulkarni upheld the decision of the Maharashtra Administrative Tribunal (MAT) which had quashed Dr Lahane's orders transferring Dr Ashok Anand to a civil hospital at Ambejogai district.
The state in support of Dr Lahane through advocate general Ashutosh Kumbhakoni argued that the Epidemic Diseases Act granted powers to the head of DMER, as a nodal officer to transfer any public servant in the medical fraternity. It claimed that the transfer orders were passed pursuant to a chargesheet filed against Dr Anand for being absent during the lockdown period.
In his defense, Dr Anand through his counsel Sonal argued that it is only the chief minister, who could have ordered his transfer and despite that being the law, Dr Lahane did not consult the CM.
CJ Datta said, "The primary object of the ED Act is to prevent the spread of an epidemic and authorizes measures to be taken but it does not include any step of the nature with which we are concerned. 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 of DMER possesses." "Such power would be susceptible to a charge of being arbitrary and offending Article 14 of the Constitution of India," the judges held.
The bench further noted that the chargesheet against Dr Anand was filed in May last year, however, Dr Lahane passed the orders in August. "This defies logic as the CM was not consulted prior to such an action. We have no doubt in our mind that exercise of power on this behalf stood vitiated by malice in law," CJ held in his orders, further saying that the orders, "suggest that it is a clear-cut case of legal malice."
The bench further took into account that Dr Anand had been quarantined for quite some time and as a result he was not regularly attending work.
"If indeed such absence affected the hospital administration as well as there was lack of proper health care facilities for patients, nothing prevented a simpliciter transfer order being issued without casting any stigma on his reputation or performance of duties," the judges said while upholding the MAT's verdict.