Suman Sharma vs State of H.P. and Others

Kuldip Singh, J.—The Petitioner has prayed for quashing of Annexure P- 1 office order dated 13.2.2007 transferring her from Zonal Hospital, Mandi to RPGMC Tanda, District Kangra.

The case of the Petitioner is that Petitioner was appointed as Staff Nurse in 1997 at Primary Health Centre, Kataula, thereafter she was transferred to Zonal Hospital, Mandi. She joined at Mandi and is working there. The Petitioner has been transferred to RPGMC Tanda, District Kangra vide Annexure P-1 dated 13.2.2007, which has been passed by Respondent No. 2 in colourful exercise of power. The appointment of Respondent No. 4 is contractual, she has been transferred after condoning her short stay. The Respondent No. 4 has manipulated her transfer in connivance with the department. The Respondents have acted arbitrarily to the prejudice of Petitioner in accommodating Respondent No. 4. At the time of filing the petition, it has also been pleaded that daughter of the Petitioner had been studying in 4th standard at Mandi, the husband of the Petitioner is in government job in Animal Husbandry Department at Sundernagar and he mostly remains on tours.

The petition has been contested by Respondents No. 1 to 3 by filing reply. The places of posting of Petitioner have been mentioned in the reply. It has been stated that Petitioner is continuing at Zonal Hospital, Mandi in view of stay of operation of Annexure P-1 qua the Petitioner by the Tribunal. The Petitioner since June 1997 remained posted as Staff Nurse in two Medical Institutions of District Mandi within a radius of 22 kilometers. The Petitioner is at Zonal Hospital, Mandi since April 1998. No legal and enforceable right of the Petitioner has been infringed. The Respondent No. 4 had already joined at Zonal Hospital, Mandi on 14.2.2007 in compliance to office order Annexure P-1. The Petitioner was relieved on 14.2.2007, but she obtained stay from the Tribunal on 23.2.2007 and has again joined her duties at Zonal Hospital, Mandi and continuing at Mandi in view of interim order. The Respondents No. 1 to 3 in their reply have not denied the stand of the Petitioner that Respondent No. 4 is a contractual appointee. The Respondents No. 1 to 3 have prayed for dismissal of the petition. The Petitioner filed rejoinder and has reiterated her stand. The Respondent No. 4 has not filed reply to the petition.

I have heard the learned Counsel for the parties. It has been submitted by the learned Counsel for the Petitioner that Respondent No. 4 is a contractual employee, whereas Petitioner is a regular employee and, therefore, Respondent No. 4 cannot replace the Petitioner in routine transfer. The learned Counsel for the Petitioner has relied judgment dated 15.7.2010 in CWP 2879 of 2010, wherein a Division Bench of this Court has held as follows:

Petitioner is aggrieved since he is disturbed at the instance of the second Respondent, who is only contract teacher. Though learned Counsel for the second Respondent submitted various justifiable and reasonable grounds for transfer, in view of our judgment in Anuradha Garg v. State of H.P. and Ors. CWP No. 3437 of 2010 wherein we have made it clear that a contract teacher cannot be transferred so as to disturb a regular teacher, this contention cannot be appreciated. We have made it clear that a contract teacher can be transferred to any of the available vacancies. In that view of the matter, the impugned order is set aside without prejudicing the liberty to the second Respondent to point out vacant places in which case, action shall be taken to accommodate the second Respondent in one of the places, pointed out by her. Needful shall be done within a period of two weeks from the receipt of the representation from the second Respondent.

The writ petition is disposed of, so also the pending application(s), if any. Copy Dasti."

In the present case, no doubt it is the stand of Respondents No. 1 to 3 that Petitioner is serving at Mandi since 1998, but larger question involved in the petition is whether Respondent No. contractual employee can replace the Petitioner a regular employee. The point is squarely covered by the judgment dated 15.7.2010, noticed above.

In these circumstances, the petition is allowed. The Annexure P-1 dated 13.2.2007 is quashed and set-aside without prejudice to the liberty to Respondent No. 4 to point out vacant places in which case action shall be taken to accommodate 4th Respondent in one of the places pointed out by her. The needful shall be done by Respondent No. 2 in terms of judgment dated 15.7.2010 within a period of four weeks after the Respondent No. 4 points out the vacant places to Respondent No. 2 within a period of three weeks alongwith a copy of this Judgment.