IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 4026 of 2011. Reserved on: 20.09.2011. Decided on: 29.09.2011. ___________________________________________ Meena Verma. … Petitioner. Versus State of Himachal Pradesh and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioner : Mr. Hamender Chandel, Advocate. For the Respondents : Mr. Vikas Rathore, Deputy Advocate General for respondents No.1 and 2. Mr. Adarsh Sharma, Advocate for respondent No.3. Mr. P.P. Chauhan, Advocate for respondent No.4. Rajiv Sharma, Judge: Respondent No.4 was transferred from I.G.M.C., Shimla to Janglic (Chirgaon), district Shimla on 16th March, 2011. Orders dated 16th March, 2011 were cancelled on 3rd 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - May, 2011 whereby respondent No.4 was adjusted at Health Sub-Centre, Batol and respondent No.3 was transferred from Batol to Janglic. Respondent No.4 joined her duties at Batol on 12th May, 2011. However, as per Annexure P-1, dated 16th May, 2011, respondent No.3, who was under transfer from Health Sub-Centre, Batol to Health Sub-Centre, Janglic, district Shimla vide office order dated 3rd May, 2011, was adjusted at Health Sub-Centre, Anandpur, District Shimla vice petitioner. 2. The petitioner has joined her duties at Health Sub-Centre, Anandpur on 6th October, 2009. An application was moved under Order 1 Rule 10 of the Code of Civil Procedure by the petitioner for impleading Smt. Sita Sharma, Female Health Worker as party respondent. The application bearing CMP No.7813 of 2011 was allowed on 9.8.2011 and Smt. Sita Sharma was added as respondent No.4. The pleadings were completed by all the parties. The parties were, in fact, permitted to file reply to the amended petition. 3. Mr. Hamender Chandel, learned counsel for the petitioner has vehemently argued that the action of the respondent-State to accommodate respondents No.3 and 4 is illegal, arbitrary, unreasonable, unjustifiable, thus violative of Articles 14 and 16 of the Constitution of India. He then contended that his client has been allowed to work at Anandpur for a period of one year and 7 months only and the - 3 - respondents No.3 and 4, who have remained posted in and around Shimla, have again been adjusted at Anandpur and Batol, respectively. 4. Mr. Vikas Rathore, learned Deputy Advocate General has argued that the petitioner has also remained posted in and around Shimla. There is no illegality in the office order dated 16th May, 2011. 5. Mr. Adarsh Sharma, learned counsel representing respondent No.3 has argued that the petitioner has always managed her posting in and around Shimla and she cannot complain or challenge her transfer to Health Sub-Centre, Janglic. 6. Mr. P.P. Chauhan, learned counsel appearing on behalf of respondent No.4 has vehemently argued that his client was initially transferred to Janglic, but on the basis of representation made by her, vide order dated 3rd May, 2011 she was adjusted at Health Sub-Centre, Batol. 7. I have heard learned counsel for the parties and gone through the pleadings carefully. 8. This Court on 26th August, 2011 has directed the respondent-State to file affidavit why the Female Health Workers are being posted at Indira Gandhi Medical College, Shimla and D.D.U. Hospital, Shimla instead of being posted in rural areas. The respondent-State was also directed to file - 4 - comprehensive affidavit giving therein short term and long term measures to ensure that the Female Health Workers are not frequently transferred except in larger public interest or exigency of service. The respondent-State was also directed not to transfer the Female Health Workers in the State till further orders. 9. In sequel to order dated 26th August, 2011, The Secretary, Health to the Government of Himachal Pradesh has filed supplementary affidavit on 6th September, 2011. He has categorically admitted that 85 transfers were effected on 16th March, 2011 in respect of Female Health Workers working in urban centres against the posts which were essentially not there or in respect of centres which had more than one Female Health Worker posted or for the purpose of administrative exigencies. 10. In affidavit filed on 9th September, 2011, the Secretary, Health to the Government of Himachal Pradesh has stated that, in fact, 35 transfers were made from IGMC/IG Hospital, Shimla and DDU Hospital, Shimla to rural areas. However, in 4 cases, transfers were cancelled on medical grounds and in 24 cases modifications were made in the nature of shifting the place of posting from one rural area to another. It has also come in the affidavit that the Department of Health intends to post and utilize the services of Female - 5 - Health Workers more in rural areas than in urban areas. A reference has also been made to office memorandum dated 10th April, 2008. 11. This Court has permitted the learned Deputy Advocate General to seek instructions on 14th September, 2011 under what circumstances; Female Health Workers are being posted either in Indira Gandhi Medical College/Hospital and D.D.U. Zonal Hospital, Shimla. In sequel thereto, the Director, Health Services has instructed the learned Advocate General by way of letter dated 15th September, 2011. The letter was permitted to be taken on record. 12. According to the contents of this letter, dated 15th September, 2011, there was no post of Female Health Worker sanctioned and existing in IGMC/IGH, Shimla and only one post of Female Health Worker is sanctioned and existing in ESI Dispensary, DDU, ZH, Shimla. However, respondent-State has retained one Asha Sharma in DDU Hospital, Shimla and Kanta Jaswal in IGMC/IGH, Shimla. Resham Kapoor, Neelam Kumari and Neena Mankotia have also been retained at IGMC/IGH, Shimla, DDU Hospital and KNH/IGMC, Shimla. 13. It is intriguing to note that the respondent- Department has posted Female Health Workers at IGMC/IGH/DDU, Shimla without there being any sanctioned and existing post(s) in these institutions. Female Health - 6 - Workers are required to work in the rural areas. There is only one post of Female Health Worker sanctioned and existing, that too, in ESI Dispensary, DDU, ZH, Shimla. 14. In fact, respondent No.4 was also working at IGMC, Shimla before her transfer to Janglic on 16th March, 2011. She has managed to get her transfer cancelled vide office order dated 3rd May, 2011 whereby she has been transferred now to Health Sub-Centre, Batol replacing respondent No.3. Respondent No.3, in fact, has been transferred to Janglic (Chirgaon) by the same order, dated 3rd May, 2011. However, vide order dated 16th May, 2011, respondent No.3, who was under transfer from Health Sub- Centre, Batol to Janglic, has been accommodated at Anandpur vice petitioner and the petitioner has been transferred to Janglic. The petitioner has worked only for one year and 7 months at Health Sub-Centre, Anandpur. Her two daughters are pursuing their studies in Shimla; one in B.Com. 1st year in St. Beeds College, Shimla and the second in 10+2 at Shimla. 15. It is for the employer where an incumbent has to be posted. However, the power to transfer is coupled with duty to act judiciously. In the instant case, the entire exercise has been undertaken by respondents No.1 and 2 to accommodate initially respondent No.4 at Batol and thereafter respondent No.3 at Anandpur. This was colourable exercise - 7 - of power. There is neither any public interest shown nor any administrative exigency why the respondents No.3 and 4 have been accommodated arbitrarily at the cost of petitioner, who has worked at Anandpur only for a period of one year and 7 months. The fact that the petitioner has been working in and around Shimla was well within the knowledge of the respondent-State when she was posted at Anandpur on 6th October, 2009. Rather, respondents No.3 and 4 have also remained in and around Shimla, more particularly, respondent No.4 has also remained posted in I.G.M.C., Shimla before her transfer and posting at Batol. 16. Accordingly, in view of the observations and discussions made hereinabove, the writ petition is allowed. Annexure P-1, dated 16th May, 2011 and letter dated 3rd May, 2011 are quashed and set aside. The respondents No.1 and 2 are directed to permit the petitioner to discharge her duties at Anandpur till the completion of her normal tenure. Respondent No.3 is directed to be posted at Health Sub- Centre, Batol and respondent No.4 is directed to be transferred to her initial place of transfer, i.e. Health Sub- Centre, Janglic (Chirgaon). Respondents No.3 and 4 shall be relieved forthwith. Respondents No.1 and 2 are further directed not to post any Female Health Worker in IGMC/IGH, KNH or DDU, ZH except against one post of Female Health - 8 - Worker, sanctioned and existing in ESI Dispensary, DDU, ZH, Shimla. This order shall not affect the case of Kanta Jaswal, who has obtained stay order in CWP No.1969 of 2011 from this Court. Now as far as Asha Sharma is concerned, she has been retained at DDU Hospital, Shimla on the basis of directions issued in CWP No.2344 of 2011. However, she could not have been posted against non-sanctioned and non- existing post. She should also be posted in accordance with law against the sanctioned and existing post only. Resham Kapoor, Neelam Kumari and Neena Mankotia, who are posted against non-sanctioned and non-existing posts are ordered to be transferred in accordance with law. Interim order dated 26th August, 2011 is modified accordingly. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma), Judge. September 29, 2011. (sck).