Punjab-Haryana High Court
Rajesh Kumar Sharma vs State Of Haryana And Others on 20 February, 2014
Author: Augustine George Masih
Bench: Augustine George Masih
CIVIL WRIT PETITION NO.19311 of 2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CIVIL WRIT PETITION NO. 19311 of 2013
DATE OF DECISION: FEBRUARY 20, 2014
Rajesh Kumar Sharma
.....Petitioner
VERSUS
State of Haryana and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. K.L. Dhingra, Advocate
for the petitioner.
Mr. Harish Rathee, Sr. DAG, Haryana,
for the State.
Mr. Lalik K. Gupta, Advocate
for respondent No.5.
*****
AUGUSTINE GEORGE MASIH, J. (ORAL)
Petitioner has approached this Court impugning the order dated 23.08.2013 (Annexure P-3) vide which the petitioner stands transferred from CHC Chaurmastpur (Ambala) to CHC Firozpur Jhirka (Mewat).
It is the contention of the counsel for the petitioner that the petitioner has not been transferred because of some administrative reasons as has been sought to be projected in the order rather his transfer is based upon a note submitted by one Shri Akram Khan, M.L.A. from Yamunanagar. He contends that the transfer is based upon the fact that one Harish Kumar 2014.02.28 10:21 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.19311 of 2013 -2- Smt. Rinki Khan is also working as a Laboratory Technician alongwith the petitioner and because of her work being not satisfactory as the reports submitted by her were not found to be correct as there were mistakes found during the period January 2011 to December 2012. Explanation from her was sought for and in this regard, a communication dated 30.01.2013 (Annexure P-4) was sent by the Senior Medical Officer, C.H.C. Chauramastpur, District Ambala to the Civil Surgeon, Ambala. Thereafter, vide letter dated 12.02.2013 (Annexure P-5), Senior Medical Officer sent a detailed position with regard to her work and copy of which was sent to the Deputy Civil Surgeon (Malaria) Ambala. On this basis, the explanation was called for. Gulzar Singh Khan, father of Smt. Rinki Khan threatened the then Senior Medical Officer and in this regard, a complaint regarding receipt of threats from Gulzar Singh, father of Smt. Rinki Khan was sent by him to the Civil Surgeon, Ambala vide letter dated 12.02.2013 (Annexure P-
5). The complaint was given to the police in which the father of Smt. Rinki Khan accepted the contents of the complaint to the correct and apologies for the same.
Counsel contends that on misunderstanding that these reports are initiated at the instance of the petitioner against Smt. Rinki Khan, father of Smt. Rinki Khan who is an Inspector in the Agriculture Department, had approached M.L.A. Shri Akram Khan who on a note has called for the transfer of the petitioner which became the basis for his transfer. He, thus, contends that the transfer of the petitioner is based upon the extraneous consideration and cannot sustain. It has further been suggested that the wife of the petitioner is working as a Nurse in Government Medical College Harish Kumar 2014.02.28 10:21 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.19311 of 2013 -3- Hospital, Sector 32, Chandigarh. Petitioner's mother is taking regular treatment from the Medical College Hospital Chandigarh and is of old age suffering from Oesto-arthritis with Hypertension and, therefore, she requires him to take care of her. His children are studying in Ambala and daughter is in K.G. standard. On this basis, it has been prayed that the order of transfer dated 23.08.2013 (Annexure P-3) deserves to be quashed.
In the reply which has been filed by the official respondents, it has been stated that the petitioner was earlier arrested for the abetment of suicide of his father under Section 306 IPC and he was in judicial custody for a long time. He was placed under suspension during his arrest period. Residents of the village Chaurmastpur made a complaint dated 16.02.2010 (Annexure R-1) against the petitioner regarding his demand for bribe from patients and misbehaving with them. An objection has also been raised that the Senior Medical Officer, Incharge, Community Health Centre, Chaurmastpur (Ambala) is not competent to issue certificate dated 24.08.2013 (Annexure P-1) that the petitioner is performing his duties excellently and his work and conduct is excellent. Assertion has also been made that the Senior Medical Officer has connived with the petitioner to defuse his transfer order. The transfer of the petitioner is based on administrative grounds and in public interest so that better health care services can be granted to the backward area of Mewat and there are no mala-fides towards the petitioner.
Counsel for the State submits that the petitioner has been serving at the same station for more that 11 years and, therefore, his transfer cannot be said to be mala-fide or in violation of the transfer policy. He Harish Kumar 2014.02.28 10:21 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.19311 of 2013 -4- further contends that this is not a couple case as the wife of the petitioner is working in Chandigarh and not posted at Ambala which would require the petitioner to be posted at Ambala. He further contends that the petitioner is a mischievous person and has filed false complaints against his colleagues.
Counsel for Smt. Rinki Khan-respondent No.5 submits that various complaints have been filed against the petitioner by the residents of the village and in this regard he again referred to the complaint dated 16.02.2010 (Annexure R-1). Referring to Annexure P-8 which has been appended alongwith the replication filed by the petitioner, his submission is that all the registered letter/envelops which were sent to the complainants to join the proceedings in the enquiry were received back without delivery. This, he contends indicates that the petitioner did not allow the postal authority to deliver the registered letter to the complainants. The petitioner is, thus, a very influential person and can even influence the postal authority for his benefit. He now, at this stage, contends that the addresses on the envelops were probably incorrect and the delivery of the said envelops could not be effected upon the complainants which would again under the influence of the petitioner that the wrong addresses were incorporated on the envelops. He further states that he has not received the copy of the replication along with Annexure P-8 which has been filed by the petitioner, however, he has seen the said copy from counsel for the State and had made his submissions.
Counsel for the respondent No.5 again says the only contention which he wants to submit at this stage is that the allegations against the applicant Smt. Rinki Khan was that her father has connived with one Shri Harish Kumar 2014.02.28 10:21 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.19311 of 2013 -5- Akram Khan, M.L.A. who is stated to be her relative and, therefore, the mala-fides on the part of the the applicant Smt. Rinki Khan is baseless.
Counsel for the petitioner has clarified the position with regard to the complaint dated 16.02.2010 (Annexure R-1) which is the basis for stating that his work and conduct is not satisfactory and the residents of the village are not happy with him is incorrect. By referring to the communication dated 01.09.2010 (Annexure P-8) addressed by the Deputy Civil Surgeon, Ambala to the Civil Surgeon, Ambala where on the basis of the enquiry held against the petitioner on the complaint dated 16.02.2010 (Annexure R-1) it was found and stated that the complainants of the village, who had filed the complaint and were named therein were sought to be informed vide registered letters No. 389-397 dated 05.08.2009 but none of the complainant presented himself on 20.08.2010 in the CHC Chaurmastpur for substantiating the allegations in the complaint. All the registered letters/envelops were received back in original which were forwarded to the authority. Since none of the complainants put in appearance before the Enquiry Officer, the Enquiry officer concluded that these complaints were sent by the some mischievous persons due to personal grudge. He, on this basis, contends that the stand of the respondents is totally unjustified and baseless and without verifying the fact on record, the reply has been filed with an intention to mislead the Court.
Substantiating his assertion that the transfer of the petitioner was not based on purely administrative grounds, he has referred to the information which has been received by the petitioner under the Right to Information Act, 2005 where on a note of an Ex-Minister Nirmal Singh Harish Kumar 2014.02.28 10:21 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.19311 of 2013 -6- addressed to the Chief Minister (Annexure P-9) which states that request for transfer of the petitioner has been made because of his long stay for 10/11 years, the said request has been forwarded through the OSD to the Chief Minister with a note that the Chief Minister has desired that the petitioner may be transferred from there against the vacancy in administrative interest. This, the counsel for the petitioner contends justifies the stand of the petitioner that indeed he was transferred due to some other reasons which have weighed in the mind of the authorities to pass the order of the transfer, instead of administrative reasons as has been stated in the reply.
I have considered the submissions made by the counsel for the parties and with their assistance have gone through the record of the case.
The assertions of the counsel which have been recorded above speak for itself as the records also indicates that the transfer of the petitioner is not based on administrative grounds or in public interest rather the same is on the basis of a note which has been initiated by an Ex-Minister who is a member of District Congress Committee (Rural) addressed to the Chief Minister requesting him for transfer of the petitioner which has been acted upon as per the Chief Minister's desire. This position has not been projected by the respondents in the reply which has been filed in Court. Although the assertion of the petitioner with regard to the note being that of Shri Akram Khan, M.L.A. has not been found to be correct, however political influence in the transfer of the petitioner has been proved on record.
Position as it stands now indicate that the transfer of the petitioner is not based on administrative exigencies but primarily is because Harish Kumar 2014.02.28 10:21 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.19311 of 2013 -7- of extraneous consideration which could be that of what has been projected by the petitioner in his writ petition on the basis of Shri Gulzar Singh Khan, father of Smt. Rinki Khan. There is ample evidence on record which suggest that there are large number of complaints with regard to the inefficiency of Smt. Rinki Khan but when she was called upon to respond to the same, instead of doing so, her father Shri Gulzar Singh Khan even dared to threaten the Senior Medical Officer, CHC Chaurmastpur (Ambala) which led to the filing of a complaint by the said official to the Civil Surgeon, Ambala dated 12.02.2013 (Annexure P-6) which was also forwarded to the police authorities where on investigation it was found that as a matter of fact such threats were given by Shri Gulzar Singh Khan through his mobile phone and he admitted his fault and apologies for the same. This fact shows that there was a grudge mushrooming against the Senior Medical Officer and there was also a thinking going on that these complaints against Smt. Rinki Khan were at the instance of the petitioner.
It needs to be mentioned here that the petitioner has not impleaded Smt. Rinki Khan as respondent in the writ petition. An application i.e. CM No.14641 of 2013 was preferred by her under Order 1 Rule 10 CPC for her impleadment as party respondent which was allowed by this Court vide order dated 11.10.2013. This indicates the undue interest which has been shown by respondent No.5 in the matter specially when it is admitted fact that two posts of Laboratory Technicians were in CHC Chaurmastpur and by the status quo order, which has been passed by this Court on 13.09.2013 did not, in any manner, effect the service of respondent No.5. Not only this, another application i.e. CM No.17891 of 2013 was Harish Kumar 2014.02.28 10:21 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.19311 of 2013 -8- filed by respondent No.5 for vacation of the status quo order passed by this Court. All these clearly gives an indication that there was involvement of respondent No.5 in passing of the transfer order of the petitioner dated 23.08.2013 (Annexure P-3). The order of transfer on this ground also cannot be sustained.
Today when the case was heard by this Court, keeping in view of the facts and circumstances of the present case, counsel for the State was directed to seek instructions from the official present in Court, if the petitioner could be adjusted somewhere near Ambala. State counsel, on instructions from the official present in Court, contended that none of the post of Laboratory Technician was lying vacant in either District Ambala or in District Panchkula.
Counsel for the petitioner stated that there was a post of Senior Laboratory Technician lying vacant in District Panchkula and in many stations, Laboratory Technicians have been adjusted against the posts of Senior Laboratory Technicians and the petitioner can also be similarly adjusted. Counsel for the State was again directed to seek instructions from the respondents on this aspect and the case was kept pending to be taken up after some time.
The case was thereafter taken up for hearing when the counsel for the State informed the Court that it was not possible for the petitioner to be adjusted at Panchkula against the post of Senior Laboratory Technician but could not dispute the fact that at some stations, adjustment of Laboratory Technicians against the posts of Senior Laboratory Technician have been done and the adjusted persons are continuing on the said Harish Kumar 2014.02.28 10:21 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.19311 of 2013 -9- postings. This further indicates the intention of the respondents in passing the order of transfer against the petitioner impugned herein and, thereafter, insistence of continuation of the same.
All the above facts and circumstances indicate that the transfer order dated 23.08.2013 (Annexure P-3) has been passed upon the consideration other than administrative exigencies and thus the same cannot be said to be bona fide exercise of powers.
In the light of the above, the present writ petition is allowed. Impugned order dated 23.08.2013 (Annexure P-3) is hereby quashed.
February 20, 2014 ( AUGUSTINE GEORGE MASIH )
Harish JUDGE
Harish Kumar
2014.02.28 10:21
I attest to the accuracy and
integrity of this document