Arun Kumar vs State Of H.P. And Others

Jyotsna Rewal Dua, J

Private parties to this litigation are working as Assistant Commissioners (Food Safety) in the office of Chief Medical Officer in different districts. Under the impugned order issued on 24.03.2023, petitioner (Arun Kumar) has been transferred from O/o CMO Solan to O/o CMO Mandi vice respondent No. 3 (Smt. Virendra Chauhan).

Petitioner says that he is being harassed to accommodate respondent No. 3. He also says that assuming, respondent No. 3 is to be adjusted, then also, it cannot be at his cost. Petitioner has also endeavoured to bring respondent No. 5 (Vijaya Kumari) into the litigation fold with the plea that she has never been shifted from her place of posting at Shimla.

Case put forth for the petitioner

2(i)Incumbency of petitioner

Sr. No

Date

1

19.12.2016

Appointed as Assistant Commissioner (Food Safety)

2

March, 2017

Transferred to Shimla

3

July, 2017 to June, 2020

Served at Hamirpur

4

June, 2020 to July, 2022

Served at Mandi

5

18th July, 2022

Transferred to Solan

6

24.03.2023

Impugned transfer to Mandi

2(ii) It has been submitted for the petitioner that :-

2(ii)(a) Petitioner has just completed about 8 months at Solan. Under the impugned order, he has been transferred without allowing him to complete normal tenure of 3 years at Solan.

2(ii)(b) Impugned transfer order has been issued merely to accommodate respondent No. 3 who has been brought in place of petitioner on the basis of a D.O. note. Respondent No. 3’s transfer at petitioner’s place of posting is neither in public interest nor in administrative exigency. Petitioner’s short stay has not been condoned by the competent authority.

2(ii)(c) Assuming, respondent No. 3 is to be suitably adjusted in view of difficulties being faced by her, then also, there are other incumbents, including respondent No. 5 who have never been transferred from their place of posting. These officials are never disturbed, whereas others are subjected to frequent transfers. Accordingly, prayer has been made for quashing the impugned order dated 24.03.2023.

Respondent No. 3 highlighted her saga of unfortunate circumstances and the reasons why she represented to the competent authority seeking her transfer and adjustment. Briefly, put her narration is as under :-

3(i) Incumbency of respondent No. 3.

Sr. No.

Date

1

23.06.1999

Appointed as Food Inspector

2

1999 to 2000

Posted at Shimla

3

1999 to 2000

Posted in District Solan

4

1999 to 2000

Posted at Shimla

5

2008 to 2009

Additional charge of District Kinnaur

6

April, 2015 to August, 2016

Posted in District Solan with additional charge of District Sirmour

7

August, 2016 to September, 2022

Posted at Shimla with additional charge of Districts Kinnaur and Bilaspur.

3(ii) While respondent No. 3 was posted at Kinnaur in 2022, her husband fell seriously ill. Her minor daughter was studying in 7th standard at Shimla. Her mother-in-law is aged 99 years. With none to look after her ailing husband and aged mother-in-law as well as the minor daughter, respondent No. 3 applied for voluntary retirement (VRS) by moving appropriate application to the competent authority. In the meanwhile, she proceeded on medical leave. Unfortunately, on 11.01.2022, her husband breathed his last in PGI, Chandigarh. Having lost her life partner and source of income, the respondent No. 3 moved an application for withdrawing her application for voluntary retirement. Her request was accepted. She was permitted to withdraw the application.

Respondent No. 3 made a representation to the competent authority to transfer her from Kinnaur to Shimla. The competent authority accepted the request. An office order was issued on 02.02.2023 transferring her to District Mandi. Respondent No. 3 did not join at Mandi. Vide impugned order dated 24.03.2023, she was adjusted in District Solan vice the petitioner. Respondent No. 3 is stated to have joined at Solan.

Respondent No. 5 has been named by the petitioner in his petition as one who has never served outside Shimla.

4(i) Incumbency of respondent No. 5.

Sr. No.

Date

1

2015

Appointed on contract basis

2

01.10.2020

Regularized

3

2015 - till date

At Shimla

4(ii) Respondent No. 5 has justified her retention at Shimla citing following reasons :-

4(ii)(a) Respondent No. 5 states that her father-in-law was diagnosed for motor neuron disease in 2019. Her husband is serving in police department. Both, respondent No. 5 and her husband had to look after the father-in-law of respondent No. 5. Her father-in-law unfortunately died on 15.02.2022 at I.G.M.C., Shimla. She also has to attend to her minor son studying in Shimla. Respondent No. 5 herself underwent an Operative Hystero Laproscopy at P.G.I., Chandigarh on 22.02.2019.

4(ii)(b) Respondent No. 5 also makes an issue that after permitting respondent No. 3 to withdraw her application for voluntary retirement and submits that respondent No. 3 was directed to join at Mandi on 02.02.2023. Instead of joining at Mandi, respondent No. 3 persuaded the department to post her at Solan thereby disturbing the petitioner under the impugned order issued on 24.03.2023. It is the case of respondent No. 5 that she has been unnecessarily dragged in the instant writ petition as her name does not even figure in the impugned transfer order.

Observations

Heard learned counsel for the parties and considered the case file as well as the record produced by the official respondents.

5(i) After considering the record, the pleadings & the submissions made for all the private parties, grouse of the petitioner can be said to be well founded. He was appointed in 2016. For three years, he remained in Shimla and was thereafter transferred to Hamirpur. He remained in Hamirpur district for three years. In 2022, he was transferred to Solan. He had completed just about eight months at Solan when he was transferred to Mandi vice respondent No. 3 who was under transfer to Mandi. No doubt, an employee has no vested right to remain at one place of posting and that he can be transferred anywhere, anytime subject to administrative exigency or in public interest, but at the same time, it is also to be ensured by the welfare employer/the State that its employees are not harassed by frequent shiftings without there being any underlying cause. The petitioner had just joined at Solan. He was in the process of settling down. He had already spent eight months there. The petitioner might have brought his family to Solan. All of them might be adjusting to the new environment at Solan. All of a sudden, the petitioner has now been transferred to yet another place. In the given facts and circumstances, this cannot be permitted. There is neither any public interest or administrative exigency requiring petitioner’s transfer from Solan.

5(ii) While making observations in favour of petitioner in para 5(i) above, it cannot be denied at the same time that being a welfare employer, the State has also to keep in view the adverse circumstances currently being faced by respondent No. 3. Respondent No. 3 undeniably is passing through a rough patch in her life. As is the case projected by her, she had opted for voluntary retirement in view of her husband’s illness, aged mother-in-law as well as minor daughter going to school at Shimla. Her husband unfortunately died in the interregnum. Having lost her life partner and source of income, withdrawal of her application seeking voluntary retirement is understandable. Support lent to her by the employer is also understandable. She had represented in writing to the competent authority seeking her adjustment in the circumstances. She was adjusted at Mandi. Respondent No. 3 perhaps wanted to join a station around Shimla. Adjustment of respondent No. 3 at a suitable place was a call to be taken by the employer. Nonetheless, her adjustment could not be at the cost of the petitioner who had just about completed 8 months at Solan.

5(iii) Respondent No. 5 was impleaded in the case in view of following order passed by the Division Bench in the matter on 18.04.2023 :-

“Having heard the matter for sufficiently a long time, we are prima facie of the view that it is on account of Dr. Vijaya Kumari, that both the petitioner as well as private respondent are being made to suffer. It is the petitioner, who has been at the receiving end because he even after rendering 7 ½ months service at Shimla is sought to be transferred in order to accommodate respondent No.3, who, too, has own share of personal problems, but no such issues are with Dr. Vijaya Kumari, who initially has joined her services on contract basis on 7.7.2017 and thereafter managed to stay at Shimla by obtaining D.O. note(s) of “Do Not Disturb”.

In such circumstances, we deem it appropriate to implead Dr. Vijaya Kumari as party respondent. Ordered accordingly. We however make it clear that the opinion expressed hereinabove is only prima facie and will not be taken to be conclusive.

The officials of the respondent-department are present in the Court and are directed to inform Dr. Vijaya Kumari, who shall figure as respondent No.5, about the next date of hearing.

List on 21.04.2023, when complete records qua transfer of the petitioner, respondent No. 3 and newly added respondent be produced for our perusal.”

Respondent No. 5 has been allowed to remain at Shimla for the past many years. She gives out her family circumstances as the one of reasons for her retention at Shimla i.e. her husband’s posting at Shimla, her son studying in Shimla and ailing father-in-law who unfortunately died in the year 2019. Such kind of problems might be faced by many employees. However, that would not give them a lien to remain posted in the State capital. Perhaps because of her problems, respondent No.5 has been allowed to continue at Shimla for long. Employer has sympathetically considered her case thus far. But the fact remains that she belongs to State cadre and has to serve accordingly. Respondent No. 5 has continued to serve in Shimla for around 6-7 years now. The record shows that D.O. notes have been repeatedly issued in her favour for not disturbing her from Shimla. Respondent No.5 as well as official respondents have endeavoured to highlight the work of respondent No. 5 at Shimla and submitted that she is critical human resource to implement the work plan of Food Safety and Standards Authority of India (FSAI) ; She is the nodal officer of the State Government for ongoing projects being run by the FSAI etc. Be that as it may. Other employees also deserve to be posted at Shimla. Their metal can be known only after a chance is given to them. It cannot be the case of respondent-State that other employees are inferior or cannot work at Shimla. Suitability of an employee for a particular post is to be considered by the employer. But, at the same time, State is bound to act fairly. Concept of fairness is deep rooted in administrative action. One can perform only when he is allowed to perform. If he is never given an opportunity, never tested on a post, then it is not fair to imply that the other person who is being repeatedly given the opportunity to serve on a particular post is a better performer or that he should stay put on that post for ever.

The upshot of the above discussion is that the impugned order dated 24.03.2023 transferring the petitioner from Solan is unsustainable as the petitioner has not completed his normal tenure there. Respondent No. 3 deserves to be adjusted at this difficult phase of her life. It is for employer to see where and how respondent No. 3 can be adjusted, but it cannot be at the cost of the petitioner who has just put in about 8 months at Solan. Insofar as respondent No. 5 is concerned, in view of above discussion, ideally she should be transferred from her present place, however, in the given facts that is a call to be taken by the employer.

In the net result, petitioner’s transfer from Solan to Mandi under Notification No. Health-A-B(3)-6/2015-(H-C), dated 24th March, 2023 vice respondent No. 3 is quashed and set aside. Respondent-State is directed to take a fresh call in the matter for adjustment of respondent No. 3 by passing fresh order in accordance with law and applicable policy within five working days taking into consideration her adverse family circumstances. Within this period, respondents No. 1 & 2 shall also appropriately consider the case of respondent No. 5 for transfer, if any, from her present place of posting in light of above discussion.

The writ petition stands disposed off alongwith the pending applications, if any.