Jagat Ram vs State of Himachal Pradesh

Sanjay Karol, J.—Petitioner has assailed his order of transfer dated 8th December, 2011, which reads as under:--

Directorate of Ayurveda,

Himachal Pradesh.

No. AY.H(B)(6)-05/95 Dated Shimla-171002, the 08.12.XI

"OFFICE ORDER"

In partial modification of this office order No. Ay.H(B)(2)-2/05 dated 01.12.2011 Smt. Leela Devi who is under order of posting on promotion as Sr. Assistant, in the Office of Research Institute in ISM Jogindernagar District Mandi is hereby adjusted at District Ayurvedic Office Hamirpur in place of Sh. Jagat Ram, Sr. Asstt.

Sh. Jagat Ram, Sr. Asstt. is hereby transferred from District Ayurvedic Office Hamirpur to the O/o Research Institute in ISM Jogindernagar District Mandi with TTA/JT with immediate effect.

Director Ayurveda, Himachal Pradesh.

Challenge to the same, as per overall submissions, is on the following grounds:--

(i) Action of the State is politically motivated inasmuch as private respondent No. 4 Smt. Leela Devi who was promoted as Sr. Assistant was adjusted at the place where petitioner was posted;

(ii) Petitioner''s wife is bed ridden and he has aged parents to look after;

(iii) It is a mid academic session transfer;

(iv) The disability of private respondent No. 4 is not to the extent of 50% entitling her for adjustment under the quota. Also, petitioner himself is physically handicapped.

It is not in dispute that petitioner joined the services as a Clerk w.e.f. 1.8.1988. He was promoted as Senior Assistant on 1.12.2009. During the entire service period petitioner remained posted in and around Hamirpur. The State has filed an affidavit showing his place of posting to the following effect:--

There is no doubt that private respondent No. 4 is also physically handicapped. According to the petitioner, his disability is to the extent of 40%, whereas according to private respondent, it is 50%. The disability is locomotive in nature. Private respondent has placed on record Disability Certificate Ex. R-4/1 (Page 69 to this effect). According to the petitioner, District Ayurveda Officer issued notice dated 7.1.2012 (Annexure P-18), from which it can be inferred that the disability is only to the extent of 40%. Be that as it may be, the fact of the matter is that private respondent is suffering from disability. Significantly, Certificate of Disability issued in favour of private-respondent has not been withdrawn till date. Thus, on the basis of notice dated 7.1.2012, it cannot be presumed that her disability is lower than what is so certified by the Chief Medical Officer, Hamirpur. On the other hand, petitioner has handed over his Disability Certificate dated 13th October, 1986 showing his disability to the extent of 30%. But significantly, petitioner himself has placed on record medical prescription slip (Annexure P-4) dated 27.2.2011 which unambiguously states that "there is no physical disability". Consequently, petitioner''s contention with regard to disability is rejected.

Petitioner has handed over communication dated 18.1.2012 received by him as information under the Right to Information Act, 2005 to show that Hon''ble the Chief Minister, State of Himachal Pradesh, has approved the adjustment of private respondent Smt. Leela Devi in the place of present petitioner. Now, by no stretch of imagination, it can be presumed that this is based on political consideration or on account of political influence. Significantly in the petition, petitioner has not alleged any such mala fides and also he has not impleaded any one of such persons who allegedly exercised of managed to get the order of adjustment approved from Hon''ble the Chief Minister of the State of Himachal Pradesh. The consideration which weighed with the authorities was the fact that private respondent was a lady and a handicapped person. It cannot be disputed that under the Policy, discretionary quota does lie with Hon''ble the Chief Minister for accommodating and adjusting people on humanitarian grounds or persons suffering from acute hardships. Hence, the ground of political influence being untenable in law is rejected.

Impugned order was passed on 1-12-2011. The Division Bench of this Court on 12.12.2011 passed an interim order and directed that in case petitioner is not relieved, further proceedings for implementation of the same shall be deferred.

My attention has been invited by Mr. Ajay Sharma, learned counsel for the petitioner to the effect that there is interpolation with regard to receipt of the impugned order as also consequential action thereupon. Prima facie, it appears that there has been some interpolation in record, but then I do not find it necessary to go into this question in these proceedings. Respondent No. 2 is directed to look into the matter himself and take appropriate action with respect to the same. In this regard, reference can also be made to the contents of the affidavit so filed by private respondent wherein it has been stated that departmental inquiry stands initiated against the Office Superintendent.

No doubt when petition was filed, petitioner''s daughter was studying in 10th Class. Perhaps, it was this factor which weighed with the Court while passing the interim order. But now petitioner''s daughter is in 11th standard. Jogindernagar is not far off from village Doon in District Bilaspur which is the permanent place of residence of the petitioner or from Hamirpur, where the child is studying. It is not specific case of the petitioner that he is the only one to look after his aged parents. He is not the only child. No doubt, petitioner''s daughter is suffering from a heart disease and is taking treatment at Indira Gandhi Medical College, Hospital at Shimla but then such treatment can also be continued from Jogindernagar which also is not far off from Shimla. Jogindernagar is on the National Highway and Shimla is easily and conveniently approachable/accessible from there. Petitioner''s wife is stated to be bed ridden. Children can take care of their mother.

In any event, petitioner has now completed more than three years of his posting at Hamirpur and under normal circumstances is required to be posted out.

By virtue of interim order passed by this Court, two persons are now serving at the same place. Consequently, interim order dated 12.12.2011 is vacated. In view of the aforesaid discussion, present writ petition is dismissed as it cannot be said that the impugned order of transfer is illegal, mala fide, arbitrary or punitive in any manner. Petitioner is directed to immediately join at the place of his posting in terms of impugned order dated 8.12.2011 (Annexure P-3). This he shall do within a period of 15 days, failing which, he shall be deemed to have been relieved from his original place of posting i.e. Hamirpur.

With the aforesaid observations, present petition stands disposed of, so also the pending application(s), if any.