Kanchana Devi. vs Versus Secretary, HPSEB and Others

V.K. Sharma, J.—The Petitioner is working as Senior Assistant on the establishment of the Respondents No. 1 to 3, particularly Respondent No. 3. She has been transferred to Shimla vice private Respondent No. 4 vide order dated 24.9.2010, Annexure P-3. Being aggrieved, the Petitioner has challenged the order of transfer on the grounds of repeated transfers and short stay mainly on the following averments set up vide para 3-D of the petition:

3-D. That Petitioner''s husband is also working in the Government job and serving nearby Kandrori where Petitioner is working as such due to impugned transfer orders life and family of Petitioner is very much disturbed more so transfer orders is against transfer policy and under head of couples case and further Petitioner is looking after her old age parents and daughter of nine years as such it would be very hard to survive for such a long distance without family and there would not be any person to look after parents of Petitioner who are under treatment if she joins new place of posting i.e. F& A Wing HPSEBL Shimla-4. As such impugned orders of frequent transfer dated 24.9.2010 is very much wrong, illegal and highly arbitrary and shrouded by malafide intention just to accommodate their own person i.e. Respondent No. 4. As such same may kindly be quashed and set aside.

Against the above backdrop, the petition has been filed on the following prayers:

(i) That a writ of certiorari may kindly be issued by quashing transfer orders dated 24.9.2010, Annexure P-3 qua Petitioner.

(ii). That Petitioner may kindly be allowed to work in being Sr. Assistant in 132 KV S/S Tn Sub Division HPSEB, Kandrori in terms of orders dated 11.6.2010, Annexure P-1 and Respondents may kindly be directed not to disturb Petitioner till her retirement as Petitioner is at the verge of retirement.

In the reply, Respondents No. 1 to 3 have taken the following stand vide paras 1 to 3 of the prelimary submissions and para 3 (A & B) on merits:

Preliminary submissions:

That at the very out set it is respectfully submitted that transfer is an incidence of service. It is further submitted that there is no malafide or malice in issuing the impugned order as such no interference is warranted.

Even according to the terms and conditions of 3 services the present Petitioner is bound to obey the order of transfer and is under legal obligation to serve the replying Respondents any where within Himachal Pradesh, wherein the replying Respondents have its offices as such the present CWP is not maintainable.

(2). That no legal or vested rights of the Petitioner herein has been infringed or violated by the replying Respondents in any way or in any manner, so as to entitled the Petitioner to file and maintain the present writ petition.

(3). Without prejudice to the above, it is submitted that there is no illegality or irregularity in transferring the Petitioner from 220 KV Sub Station Division, Jassure to F&A Wing Shimla in as much as transfer of the Petitioner has been ordered in view of administrative exigencies. Moreover, the transfer is an administrative function and matter of accommodation to be made by the administrative authority in the administrative exigencies. Therefore, the Petitioner cannot claim as a matter of right of her posting at the place of her choice. This being so, writ petition deserves dismissal and it is accordingly prayed.

Reply on merits:

3 (A & B). In reply to this para/sub para, it is submitted that the Petitioner has been appointed as Clerk on 11.2.92 and joined in Elect. Division, Lambagaon. Thereafter, the Petitioner was posted in Palampur/Jassure, Khauli and Trans. Division, Jassure. The service of Smt. Kanchan Devi, Sr. Assistant alongwith other staff working in Transmission Division, Jassure was placed vide Office order N o. 163 dated 30.3.2010 at the disposal of 4 H.P. Power Transmission Corporation Ltd. on secondment basis at the same station, who was working there w.e.f. 4.10.2010. The Petitioner has made request for her transfer/repatriation from HPPTC to 220 KV Sub Station Division, Jassure vide application dated nil (Annexure P-1). The Petitioner was transferred from Trans. Division, Jassure (under HPPTCL) to 220 KV Sub Station, Jassure vide order dated 388 dated 9.6.2010 (Annexure P-2) within the same station. The Petitioner was further transferred/posted in 132 KV Sub Station Division, HPSEB, Kandrori by the Sr. Executive Engineer, 220 KV Sub Division, Jassure not by the replying Respondent. Hence, contents of this para are wrong and, therefore, denied. The Petitioner remained posted in Elect. Division, Lambagaon/Palampur/Jassure/Khauli and Trans. Division Jassure. The detailed incumbency of the Petitioner is given hereunder for perusal of Hon''ble High Court.

Lambagaon 11.2.92 to 31.7.94 2. Palampur 1.8.94 to 13.6.97 3. Jassure 14.6.97 to 20.10.2005 4. Khauli (Shahpur) 21.5.05 to 3.10.06 5. Trans. Divn. Jassure 4.10.06 to date.

From the perusal of incumbency as above, it is seen that the Petitioner has remained posted for most of the time near her home only i.e. from 1997 to 2010 and contiguous places as Lambagaon and Palampur for remaining period.

The learned Counsel for Respondent No. 4 states at the bar that reply on behalf of the said Respondent 5 has been filed in the Registry today. However, a copy of the reply has been filed, which is taken on record.

Private Respondent No. 4 has averred as under by way of preliminary submissions vide paras 1 to 3 and para 3 (A & B) on merits:

Preliminary submissions:

That the replying Respondent wants to submit that the transmission Division has not been closed as yet. It is further submitted that the Petitioner has wrongly been shown as transferred to HP PTCL, Chamba from Jasur as the order dated 9.6.2010 clearly shows the transfer of Smt. Raman Gautam, i.e. from 220 KV Sub Station Division, HPSEB Jasur to Trans-Division jasur (under HP PTCL), and Smt. Kanchna Devi (Petitioner) is working since 4.10.2006 at Sub Station (Construction) Sub Division, Jasur and the Senior XEN 220 KV has directed the Petitioner to work at Kandrori vide order dated 17.6.2010 wherein she has joined for one day at Kandrori and now she is working at 220 KV Jasur and is also residing at 2/III, HPSEB Colony, Jasur, which is the official accommodation of HPSEB allotted to her. It is further submitted that the Government employees who are posted beyond 10 kms of their place of posting, are required to vacate the official accommodation. The non-vacation of the Government accommodation by the Petitioner makes itself clear that she is residing and working at Jasur and not at Kandrori. The husband of the Petitioner is working in the State of Punjab i.e. at Dinanagar, Tehsil Gurdaspur, Punjab, hence, the question of benefit of couple case does not arise in the 6 present case. The mother-in-law and father-inlaw of the Petitioner are also residing in Punjab and the daughter of the Petitioner is also studying in Punjab. Hence, the grounds raised in the present petition have no merit, hence the petition deserves dismissal.

That the Petitioner has not come to this Hon''ble Court with clean hands and has suppressed the material facts. It is submitted here that the replying Respondent is suffering from diabetes and high blood pressure and further the Petitioner is suffering from hydronephrosis and the serum cretinine, as per the various test reports for the year 2008, serum cretinine was 2.5 and now the same has increased to 5.4 and it is very difficult for the replying Respondent to perform continuous distant journeys and day to day working.

Moreover, the hydronephrosis and increase in the serum cretinine is creating frequent problems to the replying Respondent. Now, with the high blood pressure, the heart of the replying Respondent has also weakened and the ailing husband (aged 65 years) of the replying Respondent is residing far away from her due to his business.

That the replying Respondent is going to superannuate from service just after 19 months (July, 2012). It is humbly submitted that the disease of the Petitioner and its continuous treatment is crystal clear from the various medical prescriptions attached with this reply as Annexure R-4/A (Colly) for the kind perusal of this Hon''ble Court.

Reply on merits:

3 (A & B). That in reply to this para and sub para (a to b) it is submitted that the Petitioner is 7 working since 4.10.2006 at Trans-Division, Jasur and has worked at the same station on secondment basis w.e.f. 4.10.2010. The Petitioner was transferred from Trans-Division, Jasur (unjder HP PTCL) to 220 KV Sub Station, Jasur i.e. within the same station vide Annexure P-2 on 9.6.2010. It can also be ascertained from the record that the Petitioner has remained in and around Pathankot (in District Kangra) since her initial appointment.

The replying Respondent is going to superannuate just within the next 19 months, hence having a better claim to remain at Jasur than the Petitioner.

In view of the above, the petition is disposed of with a direction to Respondents No. 1 and 2/Competent Authority that subject to the Petitioner making a representation within a fortnight from today, the said Respondents/Competent Authority shall consider the same and take final decision in the matter in accordance with law and justice within next fortnight, after hearing the Petitioner and private Respondent No. 4, if so desired. Interim order dated 30.9.2010 shall continue till then.

The petition stands disposed of, so also the pending application(s), if any.