Himachal Pradesh High Court
Sunita Kumari vs State Of Himachal Pradesh on 10 September, 2020
Author: Jyotsna Rewal Dua
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
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HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 4074 of 2019
Date of decision: 10.09. 2020
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Sunita Kumari ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
__________________________________________________________
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge
The Hon'ble Ms. Jyotsna Rewal Dua, Judge
Whether approved for reporting1 :
For the Petitioner:
For the Respondents:
r to
Mr. Vishwa Bhushan, Advocate
Mr. Ajay Vaidya, Senior Additional
Advocate General.
Through Video Conferencing
__________________________________________________________
Jyotsna Rewal Dua,J.
Petitioner is serving as Health Educator in the respondent Health and Family Welfare Department. She has laid challenge to an order dated 4.12.2019, whereunder she was transferred from Community Health Centre (CHC), Syri, District Solan to Block Medical Office, Shillai, District Sirmour, H.P.
2. Pursuant to interim orders dated 10.12.2019 and 18.12.2019, passed in this writ petition, petitioner is continuing as Health Educator in CHC, Syri, District Solan, H.P. 1 Whether Reporters of local newspaper are permitted to see the judgment ?
::: Downloaded on - 11/09/2020 20:18:44 :::HCHP 23. The transfer order has been impugned on the grounds that :-
3(i) On 19.09.2019, petitioner had submitted a complaint under the Sexual Harassment of Women at Workplace (Prevention, .
Prohibition and Redressal) Act 2013 regarding her alleged sexual harassment by the then Block Medical Officer (BMO) Syri. The impugned transfer order has been issued only to harass her for having complained against the concerned BMO and 3(ii) The petitioner was posted at CHC, Syri, District Solan on 08.08.2018. Within a span of around a year and six months, she has been ordered to be transferred to Block Medical Office, Shillai, District Sirmour. Petitioner should have been allowed to complete her normal tenure at CHC Syri, District Solan, H.P.
4. We have heard learned counsel for the parties and gone through the pleadings.
4(i). In their reply, respondents have categorically submitted that various complaints were received, not only from the petitioner, but also against the petitioner. The complaint of the petitioner was inquired into by the Sexual Harassment Committee, constituted by the respondents. A preliminary inquiry report, dated 17.10.2019 was submitted by the Committee to the respondent department with following conclusion :-
::: Downloaded on - 11/09/2020 20:18:44 :::HCHP 3"After examining the matter at the first instance, the committee is of the opinion that the complainant strict to her allegations as per written statement given by her on the other side the alleged officer is in total denial of such allegation. Hence to proceed further in the matter, the complainant .
has requested to transfer/shift the BMO Syri, so that fair and just inquiry could be conducted.
The concerned BMO also filed a complaint on 16.10.2019 with regard to his character assassination and mental torture by the petitioner. One more complaint was received by the respondents against the petitioner on 22.10.2019 regarding her alleged absenteeism, non-cooperation and misbehavior with general public.
On the basis of conclusions in the preliminary inquiry report of the Committee, the respondents on 21.11.2019 transferred the concerned BMO from CHC Syri to Jawalamukhi, District Kangra.
During the pendency of inquiry into her complaint, petitioner made a request seeking her transfer from CHC Syri to the Directorate of Health Services or Indira Gandhi Medical College, Shimla. After examining entire matter, petitioner was transferred by the respondents from CHC Syri to CHC, Shillai vide order dated 04.12.2019.
Pending inquiry into the complainants against them, both, the petitioner as well as the concerned BMO, were transferred from CHC, Syri. Final inquiry report was submitted by the Committee on 19.12.2019 with the following conclusion :-::: Downloaded on - 11/09/2020 20:18:44 :::HCHP 4
"After examining the matter in a threadbare manner, the committee is of the opinion that the allegations made by Smt. Sunita Kumari, Health Educator (herein the petitioner) are grave in nature but does not sustain in view of the statements taken from various Officers/officials. She seems not to .
be diligent towards her duties and responsibilities and for showing insubordination Dr. S.L. Verma would have reprimanded and scolded her on many occasions, which ended in mudslinging on each other on such a large scale. The committee also emphasized that Dr. S.L. Verma should also mend his behavior and talk politely to his subordinates in any situation whatsoever."
Not just the petitioner, but the BMO concerned was also transferred out of CHC Syri. Under these circumstances, it cannot be said that transfer order in question has been issued to harass the petitioner by way of any punishment, vendetta or because of petitioner having complained against the BMO.
4(ii) In respect of the petitioner having not completed her normal tenure at her present place of posting in CHC Syri, suffice to observe that this Court has repeatedly held that transfer of an employee is the exigency of service and prerogative of the employer.
Employee has no vested right to get a posting at a particular place for a particular time. It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee are required. The Court does not have the power to annul the transfer order only on the ground that it will cause personal inconvenience to the employee as these matters fall within ::: Downloaded on - 11/09/2020 20:18:44 :::HCHP 5 the exclusive domain of employer. This Court in CWP No. 2225 of 2020, titled as Puran Chand Vs. State of H.P. and others, decided on 14.07.2020 summarized the law relating to interference by Court in transfer .
of an employee as under :-
"The law regarding interference by Court in transfer/posting of an employee, as observed above, is well settled and came up before the Hon'ble Supreme Court in E.P. Royappa vs. State of Tamil Nadu, (1974) 4 SCC 3; B. Varadha Rao vs. State of Karnataka, (1986) 4 SCC 131; Union of India and others vs. H.N. Kirtania, (1989) 3 SCC 445; Shilpi Bose (Mrs.) and others vs. State of Bihar and others, 1991 Supp (2) SCC 659; Union of India and others vs. S.L. Abbas, (1993) 4 SCC 357; Chief General Manager (Telecom) N.E. Telecom Circle and another vs. Rajendra CH. Bhattacharjee and others, (1995) 2 SCC 532; State of M.P. and another vs. S.S. Kourav and others, (1995) 3 SCC 270; Union of India and others vs. Ganesh Dass Singh, 1995 Supp. (3) SCC 214; Abani Kanta Ray vs. State of Orissa and others, 1995 Supp. (4) SCC 169; National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan and Shiv Prakash, (2001) 8 SCC 574;
Public Services Tribunal Bar Association vs. State of U.P. and another, (2003) 4 SCC 104; Union of India and others Vs. Janardhan Debanath and another, (2004) 4 SCC 245; State of U.P. vs. Siya Ram, (2004) 7 SCC 405; State of U.P. and others vs. Gobardhan Lal, (2004) 11 SCC 402; Kendriya Vidyalaya Sangathan vs. Damodar Prasad Pandey and others, (2004) 12 SCC 299; Somesh Tiwari vs. Union of India and others, (2009) 2 SCC 592; Union of India and others vs. Muralidhara Menon and another, (2009) 9 SCC 304; Rajendra Singh and others vs. State of Uttar Pradesh and others, (2009) 15 SCC 178; and State of Haryana and others vs. Kashmir Singh and another,(2010) 13 SCC 306 and the conclusion may be summarised as under:-
1. Transfer is a condition of service.
2. It does not adversely affect the status or emoluments or seniority of the employee.
3. The employee has no vested right to get a posting at a particular place or choose to serve at a particular place for a particular time.
4. It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee are required.
5. Transfer order should be passed in public interest or administrative exigency, and not arbitrarily or for extraneous consideration or for ::: Downloaded on - 11/09/2020 20:18:44 :::HCHP 6 victimization of the employee nor it should be passed under political pressure.
6. There is a very little scope of judicial review by Courts/Tribunals against the transfer order and the same is restricted only if the transfer order is found to be in contravention of the statutory Rules or malafides are .
established.
7. In case of malafides, the employee has to make specific averments and should prove the same by adducing impeccable evidence.
8. The person against whom allegations of malafide is made should be impleaded as a party by name.
9. Transfer policy or guidelines issued by the State or employer does not have any statutory force as it merely provides for guidelines for the understanding of the Department personnel.
10. The Court does not have the power to annul the transfer order only on the ground that it will cause personal inconvenience to the employee, his family members and children, as consideration of these views fall within the exclusive domain of the employer.
11. If the transfer order is made in mid-academic session of the children of the employee, the Court/Tribunal cannot interfere. It is for the employer to consider such a personal grievance."
In the backdrop of facts of the case viz-a-viz legal position, the impugned transfer order cannot be said to be suffering from any illegality. We find no merit in this writ petition and the same is accordingly dismissed. The pending applications, if any also stand dismissed.
( Tarlok Singh Chauhan ),
Judge
10th September, 2020 (K) ( Jyotsna Rewal Dua),
Judge
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