Anju Kumari vs State Of H.P. & Ors

Ranjan Sharma, J

Notice. Mr. Vishal Panwar, learned Additional Advocate General, appears and waives service of notice on behalf of the respondents.

The petitioner has filed the instant writ petition seeking following relief:-

“i. That in view of the facts and circumstances mentioned hereinabove in this writ petition, the writ petition may kindly be allowed and the impugned order dated 31.10.2023 contained in Annexure P-3 may kindly be quashed and set aside.”

The case of the petitioner, as submitted by the learned counsel for the petitioner, in brief is, that the petitioner had been working as Ward Sister in CHC Bharari, District Bilaspur and she has completed two years and nine months of stay at the present station. Now, as per office order dated 31.10.2023 (Annexure P-3), the petitioner has been transferred from CHC Bharari to Dr. RKGMC&H Hamirpur, without TTA/JT.

The petitioner has assailed the impugned transfer orders dated 31.10.2023 (Annexure P-3) on the ground (i) that the petitioner has not completed the normal tenure; (ii) the petitioner has completed only two years and none months at the present station; (iii) the order of transfer has not spelt out any public interest or exigencies of service; (iv) the transfer of the petitioner from Bharari to Hamirpur ignoring factum of couple case when the petitioner’s husband is serving as Head Teacher in GPS Hari Talyangar, is contrary to Clause 5.4 of the Transfer Policy; (v) the transfer is stated to be only to give undue accommodation to Respondent No 3, is alleged to be arbitrary and malafide; and (vi) transfer has resulted in hardships in view of 70 percent disability of petitioner’s mother-in-law.

Learned Advocate General vehemently opposes the writ petition and submits that the petitioner has completed almost the normal tenure and therefore, the petitioner has, neither any fundamental right nor vested right interest, to remain posted at the present station i.e. CHC Bharari.

Be that as it may, no doubt the transfer is an incident of service and an employee has neither any fundamental right nor any vested right to seek posting at station of choice nor to seek retention at a place at his convenience. It is trite law, that the transfer can only be interfered with, in case of violation of any statutory rules or proved malafides or arbitrariness. The only exception which has been carved to the above principles of law is in (2004) 11 SCC 402, State of U.P. versus Goberdhan Lal, mandated that an employee only has a limited right, to be considered for posting, subject to administrative convenience, in accordance the existing norms governing transfers.

Without going into the rival contentions, made by the petitioner as well as the learned Advocate General, this Court is of the prima facie view and keeping in view the request so made by the learned counsel for the petitioner, this Court permits the petitioner to make a representation, to the Respondent No.2-Director of Health Services for ventilating her grievances/hardships as per existing guidelines on transfer.

In view of the facts and circumstances mentioned above and the request so made by the learned counsel for the petitioner, this Court permits, the petitioner to make the representation to Respondent No.2-Director of Health Services, within one week from today; with further directions to the aforesaid respondent, to decide the same, within two weeks thereafter. While considering the representation the respondent-State is expected to act like a model employer. Once the Transfer Policy-Guidelines are in vogue then, the limited right of an employee, to be considered in terms thereof cannot be nullified and negated, which in instant case flows from the provision of Clause 5.4 of Transfer Policy, enabling couple spouses-employees, to seek consideration of posting either at the same station or adjoining station(s), subject to availability of vacancy, needs to be examined. This Court hopes and trust that, the respondents shall also take into account the mandate of law, passed by the Hon’ble Apex Court in (2022) 12 Supreme Court Cases 01, titled as S.K. Nausad Rahman & Others Versus Union of India & Others. Learned counsel for the petitioner submits that the petitioner has not been relieved from the present station i.e. CHC Bharari, District Bilaspur, as yet. That being so, this Court is inclined to grant interim protection to the petitioner till the representation of the petitioner as aforesaid.

Accordingly, the operation of office order dated 31. 10.2023 (Annexure P-3), transferring the petitioner from CHC Bharari to Dr. RKGMC&H Hamirpur shall remain stayed.

In aforesaid terms, the instant writ petition as well as the pending miscellaneous application(s), if any, also stand disposed of.