Dr. Sonia Saroch vs State of Himachal Pradesh

Surinder Singh, J.—The petitioner joined as Medical Officer (Dental) at Community Health Centre (CHC) Jhandutta, District Bilaspur on 11.10.2000. Thereafter she remained posted at various places and lastly she was at Zonal Hospital, Mandi where she had joined on 5.3.2009.

(ii) Vide Notification dated 19.4.2011 (Annexure P-1), respondent No.3 Dr. Suveena Goel Medical Officer (Dental) stands transferred from CHC Padhar (Mandi) to Zonal Hospital Mandi, vice petitioner, without TTA with immediate effect.

(iii) The grouse of the petitioner is that before completing her normal tenure of three years as per transfer policy, she was transferred and she did not even make request for it and whereas, 3rd respondent since her joining in the medical department w.e.f. 2002 till date manipulated her posting in and around Mandi. Respondent No.3 had also tried to disturb Dr. Sanjiv Sharma within four days of his posting in Zonal Hospital Mandi by manipulating her transfer back to Padhar, but he filed CWP No.6950 of 2010 challenging his transfer order and vide order dated 16.12.2010 his transfer to CHC Padhar was cancelled by the High Court and was ordered to continue at Zonal Hospital, Mandi with liberty to the respondents-State to pass appropriate orders during general transfers keeping in view his case, with respect to stay at Padhar.

(iv) Now, by the impugned order, the petitioner was transferred to Padhar to adjust the 3rd respondent, when she was in her family way and expecting delivery on 30th May, 2011.

The Principal Bench of this Court vide order dated 21st April, 2011 noticed that transfer order Annexure P-1 shows that the transfer is without TTA and the contention of the petitioner was that she had never requested nor consented for her transfer, therefore, respondents were directed to file their short reply and in interim it was ordered that in case the petitioner has not been relieved as on that date, she would continue at the said place for the time being.

The contention of respondents No.1 and 2 is that the petitioner is a permanent resident of Mandi and she has been transferred to CHC Padhar at a distance of 18 K.M. The petitioner was not relieved from the place of posting as per orders of this Court and she is still continuing there and now she has completed the normal tenure of three years and has also given the birth to a baby and there is no hardship to join at Padhar. Further that the words "Without TTA" is only a clerical mistake and she would be allowed TTA on her joining at Padhar, but no such corrigendum was issued.

The incumbency of the petitioner as well as respondent No.3 in their short reply dated 19.5.2012 is as under:-

Dr. Sonia Saroch (Petitioner)

Dr. Saveena Goel (Respondent No.3.

CHC Jhandutta:11.10.2000 to 16.1.2003

CH Ghumarwin: 20.3.2002 to 5.7.2003

ZH Mandi: 17.1.2003 to 17.8.2006

CHC Ratti: 7.7.2003 to 27.2.2008

RH Bilaspur: 18.8.2006 to 2.3.2009

ZH Mandi: 27.2.2008 to 12.10.2010

ZH Mandi: 5.3.2009 till date

CHC Padhar: 12.10.2010 till date

The 3rd respondent in her reply submitted that she has been transferred on the request without TTA because of unavoidable circumstances and study of her child. She was not allowed to join in Zonal Hospital Mandi because of stay orders, thus, she is continuing at Padhar. It is also stated that the petitioner remained in Zonal Hospital, Mandi for two terms. Now the petitioner has completed three years at the said place, therefore, transfers orders are required to be implemented.

The incumbency of the petitioner as well as 3rd respondent reveals that the petitioner has completed more than three years in Zonal Hospital, Mandi and the 3rd respondent also remained posted at CHC Ratti w.e.f. 7.7.2003 to 27.2.2008, thereafter in Zonal Hospital, Mandi from 27.2.2008 to 12.10.2008 within the radius of less than 20 K.M. Even Padhar is also at a distance of 18 K.M. from Mandi, whereas the petitioner also remained posted earlier in Zonal Hospital Mandi w.e.f. 17.1.2003 to 17.8.2006 and both of them are revolving in and around Mandi town for the last so many years. The impugned transfer order does not show that the case of the petitioner and 3rd respondent was considered in the general transfers or that it was essentially required to be issued in public interest. Also no supporting document has been placed by the respondents-State that 3rd respondent was posted at Zonal Hospital, Mandi after considering her hardship.

Learned counsel for 3rd respondent vehemently argued that the Court has no jurisdiction to interfere with the transfer orders as no mandatory rule has been violated thereto. To substantiate his contention, he put his reliance on the judgment of the Supreme Court rendered in Mrs. Shilpi Bose and others Vs. State of Bihar and others,

Contra, Shri Dilip Sharma, learned Senior Advocate duly assisted by Shri Umesh Kanwar, for the petitioner vehemently argued that the impugned transfer on the face of it and in the above background is malafide and the 3rd respondent is trying to displace one or the other by unfair means to get herself adjusted in the Zonal Hospital, Mandi.

As a matter of fact in Shilpi Bose''s case supra, the general principle laid down is that the Courts are not to interfere with a transfer order, which is made in public interest and for administrative reasons which is lacking in this case and also that unless the transfer orders are made in violation of mandatory statutory rules or on the ground of malafide. A Government servant holding transferable post has no vested right to remain posted at one place or the other as her/his choice, he is liable to be transferred from one place to the other. The transfer orders issued by the competent authority do not violate any of his legal rights. The Supreme Court also held that even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order, instead affected party should approach the higher authorities in the department. If the Courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest.

In the aforesaid background of this case and looking to the legal aspect, the transfer orders in question do not spell out any public interest nor any record has been produced to show as such by the respondent-State. Even there is no supportive evidence on record that the 3rd respondent had made a request, which was considered by the authorities and the displacement of the petitioner before completing her tenure, was unavoidable even while looking as her plight.

In fact, the Transfer Policy of the State Government has acquired a statutory status, the respondent-State has to make out a strong case to transfer an employee in an isolated case in public interest or for any administrative reason before completing his/her normal tenure, which lacks in the present case, therefore, in my opinion, the Courts in such a situation can interfere with.

Therefore, the impugned transfer orders (Annexure P-1) are hereby quashed and set-aside in the above peculiar circumstances. Since both, the petitioner and 3rd respondent, remained posted in or around Mandi within the radius of 20 K.M. for more than three years and the petitioner has also completed her normal tenure at Mandi, therefore the respondent-State shall reconsider the matter with respect to their transfer at any other place in accordance with the transfer Policy.

However, the petitioner as well as 3rd respondent are at liberty to make their representation to the Principal Secretary (Health) highlighting their hardships/ difficulties within 15 days from the production of the copy of this judgment/ order and he shall take an appropriate decision in the matter within one month thereafter. With these directions, the petition stand disposed of, so also the pending application(s), if any and interim order dated 21.4.2011 is vacated.