Prakash Chand vs State of H.P. and Others

Dev Darshan Sud, J.—The petitioner challenges Annexure P-8 Notification dated 8.1.2010 canceling his transfer from Ayurveda Hospital Dhuni-Panjail to Ayurveda Hospital, Bamm (both in District Bilaspur).

By an order dated 13th November, 2009, Annexure P-1, transfer of five doctors was ordered. The petitioner, on his own request, because the order shows that no TTA (Traveling and Transport allowance) was payable to him, was transferred to the Ayurveda Hospital where respondent No. 5 Dr. Prem Singh was posted. By Annexure P-8, dated 8th January, 2010, this Notification was cancelled.

The case pleaded by the petitioner is that he was transferred on his own request because his wife had a heart and gynecological problems and it is easier for him to access Indira Gandhi Medical College and Hospital at Shimla, where she could receive specialized treatment. He further pleads that the transfer order Annexure P-1 was clear by directing each doctor named therein to join duties at their new place of posting immediately and submit their joining reports. Petitioner further submits that in order to favour respondent No. 5, he was not relieved and could not join his new place of posting. He submits that this is a deliberate act of malafides on the part of respondent No. 3.

The respondents have filed their respective reply(s). The State of-course supporting the order in public interest. Respondents No. 3 and 4 in their reply have pleaded that necessary arrangement were being made by respondent No. 3 to relieve the petitioner who is having charge of two Government Health Centers Dhuni-Panjali and Sikroha and no Pharmacist was posted in both these Institutions who could relieve him. Respondent No. 5 has pleaded that he has undergone heart surgery and therefore, could not be transferred to any remote area.

I do not find any ground of malafides being made out in the writ petition. Malafides are easier alleged than proved. The fact that the petitioner was not relieved immediately does not by itself perse constitute malafides. It is by now well settled that transfer is an exigency of service. However, having said that, this Court is aware about the fact that the employees in Government Service do face personal problems. If the transfer of the petitioner had been made on his personal request on the grounds of illness of his wife requiring specialized medical treatment and care, it was but expected that the respondents should have considered retaining him at a place which was near to specialized medical facilities where treatment of both, heart ailment and gynecological problem of the wife of the petitioner, was available. Employees have to be dealt within a humane manner within the constraints of administration. In these circumstances, this writ petition is disposed of with the directions:

(a) that the State shall consider the request of the petitioner for posting him near a place where medical facilities for specialized treatment for his wife are available;

(b) Such consideration shall be made within a period of one month from the date of this order is communicated to respondents No. 1 to 3.

(c) The interim orders passed by this Court shall remain in force till the decision made by the Government. Liberty reserved to the petitioner to approach this Court again, if so necessary.

This writ petition is disposed of in these terms. There shall be no order as to costs. All interim orders are vacated. All miscellaneous applications are disposed of.