Himachal Pradesh High Court
Poonam Thakur vs State Of H.P. And Others on 28 September, 2020
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
1
HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 2732 of 2020
Date of decision: 28.09.2020
Poonam Thakur ...Petitioner
Versus
.
State of H.P. and others ...Respondents
______________________________________________________
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge
Whether approved for reporting1 :
For the Petitioner: Mr. Adarsh K. Vashishtha, Advocate .
For the Respondents: Mr. Ashok Sharma, Advocate General,
with Mr. Vinod Thakur, Mr. Vikas
RAthore, Mr. Shiv Pal Manhas,
Additional Advocate Generals, Mr.
Bhupinder Thakur, Ms.Seema Sharma
r and Mr. Yudhbir Singh Thakur, Deputy
Advocate Generals, for the State.
Mr. K.B. Khajuria, Advocate, for
respondent No. 4.
Jyotsna Rewal Dua,J.
Order dated 24.07.2020, whereby vice versa transfer of petitioner and respondent No. 4 was effected, has been challenged in the instant writ petition.
2. Petitioner as well as respondent No. 4 are working as Staff Nurses. Vide order dated 24.07.2020, petitioner was transferred from Kullu Regional Hospital (Mazri) (Kullu) to Dr. Yashwant Singh Parmar Government Medical College (Sirmour) (in short Dr. YSPGMC). In her place, respondent No. 4 was brought in.
1Whether Reporters of local newspaper are permitted to see the judgment ?
::: Downloaded on - 30/09/2020 20:18:05 :::HCHP 23. Petitioner has challenged the impugned transfer order on the grounds that; (i) the same has been issued in violation of instructions issued by the respondents on 23.07.2020 whereby a complete ban on transfers had been imposed. Under these .
instructions, during the ban period, the transfer can be ordered only in rarest of rare cases specified therein, that too, with the prior approval of the Hon'be Chief Minister through the concerned Minister-in-charge and in accordance with the Transfer Policy 2013 ; (ii) the transfer order has been issued merely on the basis of a D.O. Note without there being any public interest or administrative exigency and (iii) petitioner has an infant daughter and her family is based at Kullu. Due to her family circumstances, petitioner should not be shifted to far away place at Nahan when she can be easily accommodated against various vacancies either at Kullu or at nearby places.
4. The petition was prepared and attested on the affidavit sworn by the petitioner on 26.07.2020, by the Oath Commissioner.
A specific averment has been made in paragraph No. 4(c) of the petition that "the petitioner has not been relieved as yet". The writ petition was listed before this Court on 06.08.2020, when the impugned transfer order was stayed.
::: Downloaded on - 30/09/2020 20:18:05 :::HCHP 35. Respondent No. 4 moved an application bearing CMP No. 9760 of 2020 stating therein that the impugned transfer order dated 24.07.2020 stood already implemented on 24.07.2020 itself.
Respondent No. 4 had been relieved from Dr. YSPGMC, Nahan on .
24.07.2020 (Annexure A-1) with directions to join duty at Regional Hospital, Kullu. In compliance to this, respondent No. 4 had even joined at the new place of posting i.e. Regional Hospital, Kullu on 25.07.2020. However, subsequent to stay of the transfer order by this Court on 06.08.2020, respondent No. 4 after two months of joining at Regional Hospital, Kullu is now being directed by respondents No. 1 to 3 to join her original place of posting at Nahan.
Surprisingly, the above facts were not brought to the notice of this Court on 06.08.2020. The writ petition itself was prepared and sworn on the affidavit of the petitioner on 26.07.2020 with the averment that the petitioner had not been relieved as on date whereas the order in question stood implemented on 24.07.2020. The submissions made in CMP No. 9760 of 2020 alongwith the documents appended therewith make it evident that the petitioner has misused the process of the Court. In the aforesaid background, following order came to be passed on 25.09.2020 :-
::: Downloaded on - 30/09/2020 20:18:05 :::HCHP 4 "CMP No. 9760 of 2020By medium of this application, respondent No. 4 has sought interim direction for permitting her to continue at Regional Hospital Kullu, where she had already joined prior to filing of the present petition. Learned counsel for the petitioner is not in a position to controvert this allegation. Accordingly, we permit respondent No. 4, to continue serving at .
Regional Hospital Kullu, till further orders. Application stands disposed of.CWP No. 2732 of 2020
It is surprising to note that even though this petition appears to be drafted on 26.07.2020 and filed only on 5.8.2020. The petitioner claims to be serving at Regional Hospital Kullu, has not disclosed the fact that respondent No. 4 had already joined at the said station on 25.07.2020 i.e. a day prior to filing of the present petition. Thus, on this short ground, the present petition deserves to be dismissed. However, before doing so, we afford one opportunity to explain the conduct of the petitioner.
List on 28th September, 2020."
Authenticated copy be supplied to learned counsel for the parties through the Court Master."
Today also, when the matter was listed, the petitioner has not been able to justify non disclosure of material facts. The Hon'ble Apex Court in K.D. Sharma Vs. Steel Authority of India Limited and others (2008) 12 SCC 481, in para 39 has held that 'If the primary object as highlighted in Kensington Income Tax Commissioners {(1977) 2 SCC 431} is kept in mind, an applicant who does not come with candid facts and `clean breast' cannot hold a writ of the Court with `soiled hands'. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the Court, the Court has inherent power in order to protect itself and to prevent an abuse ::: Downloaded on - 30/09/2020 20:18:05 :::HCHP 5 of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of Court for abusing the .
process of the Court.' Petitioner has deliberately concealed and withheld relevant facts from this Court for obtaining the interim order.
Conduct of the petitioner is reprehensible. Therefore, without going into the merits of the contentions raised, this writ petition is being dismissed as the petitioner has not approached the Court with clean hands and has concealed the material facts from the Court.
Pending applications, if any, also stand disposed of.
( Tarlok Singh Chauhan ), Judge 28th September, 2020(K) ( Jyotsna Rewal Dua), Judge ::: Downloaded on - 30/09/2020 20:18:05 :::HCHP 6 .
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