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Himachal Pradesh High Court · body

2012 DIGILAW 615 (HP)

Rameshwari Bhardwaj v. State of H. P.

2012-09-21

DEEPAK GUPTA, SANJAY KAROL

body2012
JUDGMENT Per Deepak Gupta, J 1. The petitioner and the private respondent both are working as Female Health Workers. The petitioner by means of this petition has challenged the order dated 7th July, 2012 whereby private respondent No.3 who was working at HSC Pujali (Kotkhai) was transferred and posted to PHC Mashobra vice the petitioner and vice versa. 2. The grievance of the petitioner appears to be that she on her request was adjusted at PHC Mashobra only on 6th April, 2011. According to the petitioner she has only spent one year and three months at Shimla and her transfer has been made only to adjust the private respondent who has hardly spent little more than six months at HSC Pujali (Kotkhai). 3. It would be pertinent to mention that most of the Female health Workers who were supposed to be working in remote and difficult areas were actually found working in IGMC, Shimla and therefore, a learned Single Judge of this court in CWP No 4026 of 2011, titled Meena Verma vs. State of Himachal Pradesh and others had directed that the Female Health Workers should not be frequently transferred and should be posted in rural Primary Health Centers and not in urban hospitals. This Court went on to hold as follows:- “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 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.” 4. The respondents in their reply have given the respective stay of the petitioner and private respondent at various stations which is as under:- Stay of the petitioner Sr. No Name of Station with Block/District Period of posting Approximate Distance between each stations 1. Karechi (Mazhobra) 8-6-88 to 8/91 --- 2. Kiarkoti (Mashobra) 8/91 to 12/96 1 & 2 =40 Kms 3. Bamot (Mashobra) 1/97 to 1/99 2 &3 = 45 Kms 4. Gawahi (Mashobra) 1/99 to 6/2001 3 & 4 =35 Kms 5. Janedghat (Mashobra) 7/2001 to 2/2004 4 & 5=55 Kms 6. Basantpur (Mashobra) 5/2005 to 4/2007 5 & 6= 80 Kms 7. IGMC, Shimla 5/2007 to 4/2011 6 & 7=55 Kms 8. Bamot (Mashobra) 1/97 to 1/99 2 &3 = 45 Kms 4. Gawahi (Mashobra) 1/99 to 6/2001 3 & 4 =35 Kms 5. Janedghat (Mashobra) 7/2001 to 2/2004 4 & 5=55 Kms 6. Basantpur (Mashobra) 5/2005 to 4/2007 5 & 6= 80 Kms 7. IGMC, Shimla 5/2007 to 4/2011 6 & 7=55 Kms 8. PHC Mashobra 4/2011 till date 7 & 8 = 9 Kms Stay of private respondent Sr. No Name of Station with Block/District Period of posting Approximate Distance between each stations 1. Ilakadhar (Chirgaon) 8.3.89 to 28.6.1994 --- 2. Lalpani (Mazhobra) 29.6.94 to 26.9.94 1 & 2 = 160 Kms 3. Motibag (Mashobra) 27.9.94 to 2.7.95 2 &3 = 15 Kms 4. MC Shimla 3.7.95 to 2001 3 & 4 =14 Kms 5. Gawahi (Mashobra) 28.3.2001 to 29.6.08 4 & 5= 10 Kms 6. Bhont (Mashobra) 30.6.08 to19.6.09 5 & 6= 15 Kms 7. DDU, ZH, Shimla 20.6.09 to 14.12.2011 6 & 7= 12 Kms 8. Puzzali (Kotkhai) 30.1.2012 to 8.7.12 7 & 8 = 80 Kms 9. PHC Mashobra 9.7.2012 till date 8 & 9= 70 Kms 5. From the perusal of the information provided by the respondents, it is apparent that the petitioner throughout her career right from 1988 remained posted in Mashobra Block except for a period of 4 years when she was posted at IGMC, Shimla. The distances given in the last column do not reflect the correct facts because it is not the distance between the two stations but the distance from Shimla which was material and if we count the distance from Shimla then it will be seen that the petitioner has served in and around Shimla within a radius of 40-45 Kms through out her career for almost 24 years. 6. The position of the private respondent is as bad except for the 5 years when she served at Ilakadhar in Chirgaon. She also remained posted in Mashobra Block or in an around Shimla. She was posted to Pujali only on 30.1.2012 but within six months has managed her transfer again to Shimla to PHC, Mashobra. 7. In the present case also it is apparent that both the petitioner as well as private respondent have somehow managed to stay within the vicinity of Shimla for their entire career. We find no special reasons why the petitioner and the private respondent were adjusted at the places of their choice through their careers. 7. In the present case also it is apparent that both the petitioner as well as private respondent have somehow managed to stay within the vicinity of Shimla for their entire career. We find no special reasons why the petitioner and the private respondent were adjusted at the places of their choice through their careers. What is the fault of those Female Health Workers who did not have the right connections and continue to serve in remote areas whereas the petitioner and private respondent have somehow managed to stay in and around Shimla? It is the duty of the employer to see that the employees are treated equally and they all are posted in different types of stations during their careers. We have already given directions in CWP No. 2387 of 2012-I titled as Alka Chakor vs. State of H.P. and others, decided on 21.6.2012 to the following effect:- “4. Though the policy has been framed, which is purportedly in consonance with the judgment delivered above but the manner in which the policy is applied leaves much to be desired. Resultantly this Court is flooded with petitions challenging transfer orders. In most cases, we find that the employees at the time of employment are willing to serve at any station. However soon thereafter they use political and other influence to get themselves transferred to a station of their choice. This clearly shows that the transfers are being made for extraneous reasons without considering the administrative exigencies. In the case of school teachers and doctors, we have found that more often than not in remote and rural areas the posts are lying vacant but in urban areas or so called rural areas which are close to town, the influential doctors and teachers are adjusted and it appears that nobody is bothered about the difficulties being suffered by the poor persons in remote and rural areas. This does not speak well of the system of the administration. We are clearly of the view that normally we would not like to interfere in transfer orders passed in administrative interests. We are also of the considered view that all the employees, such as teachers, doctors, nurses etc., will necessarily have to be posted in rural/remote areas at some stage in their careers. The administration has to be stern and strict in matters of transfers. We are also of the considered view that all the employees, such as teachers, doctors, nurses etc., will necessarily have to be posted in rural/remote areas at some stage in their careers. The administration has to be stern and strict in matters of transfers. At the same time it also has to be fair and just and should treat all the employees equally. It is only because the administration itself is lax and transfer orders are passed on extraneous considerations and the administration reverses its decisions day in and day out, that the courts are forced to intervene. These type of cases clearly highlight the fact that transfers are being made not on the basis of administrative exigencies but on other extraneous considerations. 5. In view of the above discussion though the petitioner has completed more than three years at the present place of posting, the impugned order of transfer is quashed and set aside. It is however, made clear that the petitioner can be posted at any other station which is not a sub cadre/hard area strictly in accordance with law. We further direct the Principal Secretary(Education) to the Government of Himachal Pradesh to ensure that in the Department of Education a data base is set up wherein the details of all the employees showing their various places of posting from the day they are inducted into service. In the same data base it shall also be clearly reflected whether the employee has served in a tribal areas or not. It will also be clearly indicated whether the schools in which the employees have been posted are within 25 Kms from the periphery of urban area in case of committee area and 15 Kms from the periphery of Nagar Panchayat areas. The policy framed by the Government itself envisages that all employees must by turn be sent to tribal area and hard area. Therefore, unless there are some exceptional compelling circumstances every employee must serve in the tribal area and in the hard area. At the same time, we cannot compel people who do not know people in power to serve for long periods in tribal areas. Our experience has been that when employees join duty in tribal areas, it becomes virtually impossible for them to get transferred back out of such tribal areas. At the same time, we cannot compel people who do not know people in power to serve for long periods in tribal areas. Our experience has been that when employees join duty in tribal areas, it becomes virtually impossible for them to get transferred back out of such tribal areas. It is the duty of the State to ensure that employees, who have served in the tribal areas for two winters and three summers in terms of the policy, are brought back and some other person posted in their place. 6. The department should ensure that when transfers are made the record in the data base is looked into. The employees who have served in tribal/hard areas or other remote and rural areas are not again sent to these areas but there should be a continuous process of change whereby all employees have a chance to serve in urban /tribal/hard areas and remote/rural areas. The department and in fact the State may consider categorizing the various stations in different categories e.g. categories A, B, C and D. The State should categorize all the places where employees can be posted in different categories. The State can have four or more categories as it deems fit. The categorization will be from the most easy stations i.e. urban areas like Shimla, Dharamshala, Mandi etc. which may fall in category A and the lowest category will be of the most difficult station in the remote corners of the State such as Pangi, Dodra Kawar, Spiti etc. The home town or area adjoining to home town of the employee can also be categorized in category A or at least in a category higher than the category in which it would normally fall. For example if an employee belongs to Ghumarwin which may have been categorized in category B but if the employee belongs to the area of Ghumarwin for his purpose, the posting in Ghumarwin will be deemed to be in Category A. After the categorization of the stations into different categories the entries shall be made in the data base as to in which category of station(s) a particular employee has spent his entire service. Efforts will be made to ensure that every employee serves in every category of station. Therefore, if the State decides to have four categories of station, every employee would serve in all the four categories of station. Efforts will be made to ensure that every employee serves in every category of station. Therefore, if the State decides to have four categories of station, every employee would serve in all the four categories of station. There may be exceptions in some special hard cases but in such cases specific reasoned order must be passed why the policy is not being followed. The State should ensure that the transfers are made in such a fashion that every time a transfer is made, an employee shifts from the category of station either upwards or downwards to the other category depending on where he has rendered service earlier. In case such a policy is followed which is based on objective criteria there will be no scope for adjusting the favourites at a chosen station and all the employees would be treated equally. This will avoid heartburn amongst the employees and all employees will get equal opportunity to serve in different types of areas. We, therefore, direct the State to make amendments in the transfer policy in the line of the observations made hereinabove. 7. The problem arises when a policy of pick and choose is applied while posting people. If a fair system is followed then there will be no problem in implementing the policy. Unfortunately, whenever transfers are ordered people intervene and try to get the transfer orders cancelled. These transfer orders are being cancelled without making reference to the administrative department as per the directions which have been specifically given by this. Court.” 8. The State must have a transparent system and every employee should be posted in every type of station. We are, therefore, of the considered view that though there is no merit in the present petition both the petitioner and private respondent should be posted at stations which are at least 100 Kms from Shimla. A copy of this order be sent to the Principal Secretary (Health) to the Government of Himachal Pradesh, who shall ensure that in future a policy is prepared whereby all the stations are classified in different categories and all the employees serve turn by turn in every category of station. 9. The writ petition is disposed of in the aforesaid terms. No costs.