Kamla Devi vs State of HP

Justice Dharam Chand Chaudhary, Judge

Aggrieved by the cancellation of her transfer from Government Senior Secondary School, Sadhot to Government Senior Secondary School, Sarkaghat, District Mandi, vide order dated 18.4.2012, Annexure P-3, the petitioner has approached this Court by way of filing the present writ petition for grant of following reliefs:

a). That writ of certiorari may be issued for quashing and setting aside the impugned office order dated 18.4.2012 i.e, Annexure P-3 whereby the transfer order dated 11.4.2012 has been cancelled just to accommodate the respondent No.4, in the interest of justice and fair play.

b) That writ of Mandamus may kindly be issued directing the respondents to allow the petitioner to perform her duties at present place of posting i.e. Govt. Senior Secondary School, Sarkaghat.

Since the petitioner was transferred to Sarkaghat vide order dated 11.4.2012 and allowed to join duties on the next day, i.e. 12.4.2012 by the Principal, Government Senior Secondary School, Sarkaghat, as is evident from Joining Report Annexure P-2, therefore, keeping in view the cancellation of her transfer within one week from the date of issuance of order Annexure P-1, the following order was passed on the very first day of hearing in this writ petition:

Pursuant to Annexure P-1, order of transfer, the petitioner has already joined duty at the transferred station, which can be seen from Annexure P-2, at GSSS, Sarkaghat, but after a week, it is seen that Annexure P-1 has been cancelled as per Annexure P-3. What is the reason for cancellation of the transfer order, which has already taken place, is not quite clear.

In view of the above, notice dasti to the 4th respondent. There will be stay of operation of Annexure P-3 qua the petitioner is concerned. Post for further orders on 4.5.2012.

On the next date, the 4th respondent entered appearance and apprised this Court that she was not duly relieved from Government Senior Secondary School, Sarkaghat and as such the order ibid was modified as under:

4th respondent is present. It is submitted that she has not been duly relieved so far. Needless to say that without duly relieving the outgoing incumbent, the incoming cannot join duty. The interim order dated 23.4.2012 is clarified to the above extent.

Petitioner and 4th respondent will furnish their service particulars on the next date of hearing.

The 4th respondent was, however, relieved in the meanwhile. Therefore, on 8.5.2012, the following order was passed in this writ petition:

Admitted. Post for hearing on 11.5.2012. The private respondent may not be compelled to join the transferred station till such time and it will be open to her to avail leave of the kind due.

The 4th respondent has filed the reply to the writ petition; however, the respondent-State has failed to file reply despite several opportunities including the last and final opportunity granted for the purpose.

Keeping in view that both the petitioner and the 4th respondent being class-IV are low-paid employees and there being submissions in para 4 of the writ petition that a post of Lab Attendant is lying vacant in Government Senior Secondary School, Dev Madhva (no such school, however, exists in Tehsil Sarkaghat) and that either the petitioner or the 4th respondent, can be adjusted there, this Court by way of indulgence directed the 2nd respondent vide order dated 25th May, 2012, as under:

... There shall be a direction to the 2nd respondent to consider the submission so made in the writ petition and take a decision either to post the petitioner or the 4th respondent in Govt. Senior Secondary School, Dev Madhva in case an open vacancy of Lab Attendant still exists in the said school. The compliance be reported to this Court on the next date.

In compliance to the directions ibid, the learned Deputy Advocate General, appearing on behalf of the respondent-State has placed on record a copy of order issued on 28.5.2012 by the 2nd respondent and a copy of another order of the same date, issued by the 3rd respondent, whereby the 4th respondent was ordered to be adjusted in Government Senior Secondary School, Dev Brarta, and to a query as to why such adjustment is not made at Govt. Senior Secondary School, Dev Madhva, this Court was informed that no school by the name of Dev Mdhva exists in Tehsil Sarkaghat, District Mandi.

Learned counsel, representing the 4th respondent, on instructions, apprised this Court that it is on the request of the 4th respondent made on the health ground of her husband, who needs medical treatment, off and on, her transfer to Government Senior Secondary School, Sadhot has been cancelled. Therefore, a direction was issued to the petitioner and the 4th respondent to rethink about adjustment of either of them against the post of lab attendant lying vacant in Government Senior Secondary School, Dev Brarta, making it clear that in case they are not interested to be posted there, the writ petition shall be disposed of on merits.

It is in this backdrop that this petition came to be listed today before this Court.

The petitioner and the 4th respondent are present in person. Neither the petitioner nor the 4th respondent is willing for adjustment in Government Senior Secondary School, Dev Brarta. This Court thus proceeds to dispose of the writ petition finally.

Learned Assistant Advocate General has produced letter No. G.SSS(SKT)02/2004-(SB)-3417 dated 7.5.2012 (wrongly mentioned as 7th July 2011) of Principal Govt. Senior Secondary School, Sadhot, which contains the detail of last three stations, where the petitioner and the 4th respondent remained posted as Lab Attendants. The same reads as under:

KamlaDevi L.A (Petitioner)

GSSS Sarkaghat

17.8.2006 to 19.9.20096

GSSS Rakhoh

19.9.2006 to 12.7.2010,

7 km S/Ghat

GSSS Sadhot

2.7.2010 to 30.11.2010,

15 Km from S/Ghat

Soma Devi LA (4th respondent)

GSSS Hawani

17.8.2006 to 19.9.2006,

4 Km from S/Ghat

GSSS Sarkaghat

19.9.2006 to 12.7.2010,

4 Km from Hawani

GSSS Nabahi

12.7.2010 to 30.11.2010

4 km from S/Ghat

The above service particulars have not been disputed either by the petitioner or the 4th respondent. Meaning thereby that for the last about 6 years both the petitioner and the 4th respondent are working in the schools in and around Sarkaghat, i.e., the petitioner within the radius of 6 to 10 kms, whereas the 4th respondent within the radius of 4 kms. The distance of GSSS Sadhot from Sarkaghat has been shown 15 kms, however, the certificate issued by the Executive Engineer, Dharampur Division, and produced by the 4th respondent reveals that the distance between Sarkaghat and Sadhot is 10 kms. Thus, the petitioner and the 4th respondent were locally adjusted vice versa i.e. the petitioner at Sarkaghat and the 4th respondent at Sadhot. Hence, it lies ill in the mouth of the petitioner to say that cancellation of her transfer from Sadhot to Sarkaghat, vide impugned order Annexure P-3, is illegal and contrary to the transfer policy. As a matter of fact, the 4th respondent having been posted in Govt. Senior Secondary School, Sarkaghat on 1.12.2010, as per the detail of her places of posting given by the petitioner herself vide Annexure P-4, had also not completed her tenure at Sarkaghat on the day when she was transferred to Sarkaghat, vide order Annexure P-1. The petitioner is thus not at all justified in claiming that she had short stay at Sarkaghat on the day when order Annexure P-1 was cancelled for the reason that there is no question of her short stay at Sarkaghat, particularly when only the earlier order Annexure P-1 has been cancelled by the Competent Authority, vide impugned order Annexure P-3, sending back the petitioner and the 4th respondent to their respective places of posting.

Otherwise also, the petitioner seems to have managed her joining at GSSS, Sarkaghat, on 12.4.2012 i.e., the very next day of the issuance of order Annexure P-1, i.e. well before the 4th respondent was relieved therefrom, because as per office order No. GSSS(SKT)1/2004-Relieiving-3708-12 dated 2.5.2012 of Principal Govt. Senior Secondary School, Sarkaghat, produced for perusal of this Court by the learned Assistant Advocate General, was relieved of her duties from that school on 2nd May, 2012, in the after noon. On this score also, the petitioner, who reacted immediately and joined duties in Govt. Senior Secondary School, Sarkaghat, on the very next day of her posting there, without waiting for the issuance of order relieving thereby the 4th respondent, is not justified in claiming that the order Annexure P-3 is illegal or arbitrary. How she was allowed to join duties at Sarkaghat without relieving the 4th respondent first, is a matter left open to be considered and appropriate action taken by the 2nd respondent.

The order Annexure P-1 seems to be cancelled vide impugned order Annexure P-3 on the request made by the 4th respondent, as argued on her behalf during the course of arguments. In order to substantiate the submission so made, a reference has been made to representation Annexure R-1, which she made to the Competent Authority and medical certificates Annexures R-2 and R-3 issued by the Medical Officers, Zonal Hospital, Hamirpur and Civil Hospital, Sarkaghat. The same reveal that her husband is suffering from seizures. If the Competent Authority on executive side has considered the request made by her for cancellation of her transfer favourably, coupled with the factum that the petitioner was never transferred from Sadhot to Sarkaghat in terms of the transfer policy and rather it being a case of local adjustment at a place within the radius of 10-15 kms, no interference of this Court is warranted in this matter. The present rather is a case where in case the petitioner is aggrieved in any manner whatsoever, she may approach the Competent Authority for redressal thereof, however, in that event such Competent Authority before taking any action will associate the 4th respondent also, in case by that action the said respondent is likely to be adversely affected. In the light of what has been stated hereinabove, this writ petition being devoid of merit is dismissed. Resultantly, the interim orders passed in this writ petition shall stand vacated forthwith. The petitioner, if so advised, is at liberty to approach the Competent Authority against her surviving grievance, if any, in which case her request shall be considered and action taken by such Competent Authority, after associating the 4th respondent, in case the action intended to be taken otherwise affects the said respondent adversely.

In view of the disposal of the writ petition, pending applications, if any, shall also stand disposed of.