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2006 DIGILAW 244 (HP)

KAMLA VERMA v. STATE OF H. P.

2006-08-21

NARINDER SINGH THAKUR

body2006
JUDGEMENT Narinder Thakur, Vice Chairman: - The applicant has filed this Original Application against the impugned order dated 15.6.2005 contained in Annexure- ! A/4 whereby she has been transferred from Health Sub Centre Sandhu under Block Matiyana to Health Sub Centre Sharmala and in her palace respondent No.3 Smt. Indira Thakur has been adjusted. She alleged illegality and arbitrariness in the impugned order. 2. The applicant claims that she was transferred on her request to Sandhu on mutual basis vide Annexure-A/1 and she joined there on 2.2.2006. Now after a short spell tenure she has been transferred Sandhu to Sharmala. The replies filed by respondent department and respondent No.3, it has been stated that ever since appointment of the applicant, she has been posted within 20 Kms. She remained posted in Kelvi from 2.3.7.1997 to 21.2.2000 and Sandhu from 22.2.2000 to 24.3.2002 and then at Sarioum w.e.f. 25.3.2002 to 1.2.2005 and at Sandhu 2.2.2005 to till date. She is posted at Sandhu for the second time. 3. It is also stated in the reply that the respondent No.3 has joined at Sandhu on 15.6.2005 and the Original Application was got prepared on 17.6.2006 and filed thereafter. The day respondent No.3 joined at Sandhu the applicant was very much present in the Health Sub Centre and despite being in the knowledge of factum of joining of respondent No.3, the applicant has purposely concealed the same and as such due to suppression of material fact, the applicant succeeded in obtaining ex-prate interim order on 20.6.2006. 4. The rejoinder was filed by the applicant in the Court which was taken on record. In the rejoinder mainly the stand taken in the Original Application have been retired. 5. We have heard the learned counsel for the respective parties as well as perused the pleadings and record very carefully. 6. Admittedly the respondent No.3 has joined at Sandhu on 15.6.2006.The Original Application has been prepared on 17.6.2006. The Original Application has been prepared on 17.6.2006, after two days of joining of respondent No.3. The same was filed on 18.6.2006 and an interim order passed on 20.6.2006 staying the operation of impugned order Annexure-A/4. The learned counsel for the applicant tried to impress upon us with her arguments that there is no concealment of fact as it has been stated in the Original Application that the impugned order stands implemented. The same was filed on 18.6.2006 and an interim order passed on 20.6.2006 staying the operation of impugned order Annexure-A/4. The learned counsel for the applicant tried to impress upon us with her arguments that there is no concealment of fact as it has been stated in the Original Application that the impugned order stands implemented. The impugned order is contrary to the facts on record. On perusal of the Memo of Parties in the Original Application the address of respondent No.3 has been given "Smt. Indira Thakur, Female Health Worker, through respondent No.2". This was enough to misled this Court in believing the at respondent No.3 has not joined at Sandhu as such her address at Sandhu has not been given. Such suppression of material facts is a good sole ground for dismissing the case. 7 The Honble High Court of H.P. in case AIR 1980 HP 5 titled as Shankar Dass Vs. State of H.P. has held hat the "Writ petitions are decided merely on pleadings stated on oath and, therefore, it is the duty of the litigants not to resort to suppestio very or suggeio falsi with regard to any material fact at the time of filing the writ petitions. If a petitioner subsequently come out with some material fact which could have obtained for him from the Court there is no escape from the conclusion that he has done so with a view to procure an ex-parte order is his favour by keeping the Court in dark as regards the facts which were within his knowledge. Such an attitude on the part of a petitioner can never be encouraged when the extra ordinary jurisdiction contemplated by Article 226 of the Constitution is sought to be invoked." 8. Notwithstanding, it was being impressed upon us that since the applicant was transferred to Sandhu on her request she should have been permitted to complete her normal tenure at Sandhu. In this regard our intention was drawn to two decided cases on the point reported in 2003 (1) Latest HLJ 2003 titled as Kamlesh Sharma Vs. State of H.P. and 2005(2) Latest HLJ 1157 titled as Indu Mahajan Vs. State of H.P. Both these cases in no way helps the case of the applicant. In both these cases the incumbents therein were adjusted on their request and transferred shortly thereafter. State of H.P. and 2005(2) Latest HLJ 1157 titled as Indu Mahajan Vs. State of H.P. Both these cases in no way helps the case of the applicant. In both these cases the incumbents therein were adjusted on their request and transferred shortly thereafter. In the present case on perusal of Annexure-A/1 it is apparent that one Smt. Shant Chauhan was transferred on her request from Sandhu to Sarioun. The applicant was only consenting party to her request to swap her place. As such, It cannot be said that the transfer order contained in Annexur-A/1 was on the request of the applicant. As such she can drive no benefit from the above decided cases. 9. It is admitted case of the parties that the applicant belongs to State Cadre. Her entire stay so for lias been within 20 Kms. Radius so for. Now she has not been transferred to a very distance palace. In 1998 (3) SCC 303 the Honble Apex Court has observed that the competent authority can modify/after its previous orders. It is also well settled position of law by the Honble Apex Court that who should be transferred where is the prerogative of the employer and transfer is an incidence of service. The transfer policy does not say any where that a person cannot be transferred unless he/she completes 3 to 5 years at a particular place and we are bound by the judgment of Honble Apex Court referred to above. The law in this regard is well settled and reported in 1995 (4) SCT 225. 10. In State of UP Vs. Govardhan Lal 2004(3) SLR 239 it has been held that a challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or the Tribunal as though there are appellant authorities over such orders, which could assess the necessities of the administrative wheals and requirement of the situation concerned. It further observed in Para 8 that. It further observed in Para 8 that. "That is for the reason that the Court or Tribunal cannot substitute their own decision in the matter of transfer for that of competent authority of the State and even allegation of malafides when made must be such as to inspire confidence in the Court or are based on concrete material ought not to be entertained on the mere making of its or on consideration borne out o conjecture and surmises and except for strong and convincing reasons no interference could ordinarily be make will an order of transfer." 11. lt admitted position form the pleadings that by this time the applies has completed more than one year and one month at the present place of posting and she remained within a radius of 4 to 20 Kms. for more than nine years. Taking into consideration all these facts and circumstances of the case coupled with concealment of the fact and the stay of the applicant within a radious of 20 Kms the present impugned order does not suffer from any illegality nor it can be termed as mala fide, therefore, transfer being an incidence of service which has to be accepted by the applicant, present Original Application is rejected with no order as to costs. Original application stands finally disposed of. Interim order passed on 20.6.2005 is hereby vacated.