Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 1856 (HP)

Sangat Ram v. State Of H P

2019-12-04

ANOOP CHITKARA, DHARAM CHAND CHAUDHARY

body2019
JUDGMENT Anoop Chitkara, J. - Challenging the transfer order dated 26-02-2018 (Annexure P-1) and another order dated 24-06-2019 (Annexure P-3) directing to report for duty, a Senior Lab Technician has come up before this Court, seeking mandamus to quash both these orders. Director of Health Services, Shimla, HP, who is second respondent, vide order dated 26-02-2018 transferred the petitioner Sangat Ram, Lab Technician from Primary Health Center (PHC), Anni to Primary Health Center, Nither under BMO Nirmand, vice Sh. Mehar Dass, who is fourth respondent, on mutual basis, with immediate effect, without Traveling Allowances for Transfer (TTA) and Joining Time (JT). 2. Somewhat after this, the petitioner wanted his posting at PHC, Kungush, and the department gave concession, and posted him on deputation at PHC Kungush for a period of one year, w.e.f. 25-05- 2018. After the expiry of the deputation period, vide order dated 24-06-2019, the Block Medical Officer, Nirmand, Distt. Kullu, (respondent No.3.) relieved the petitioner from duty at PHC, Kungush, and directed him to report for duty at the original place of posting i.e. PHC, Nither under BMO Nirmand, with immediate effect. 3. The petitioner represented the second respondent and brought to his notice that he is a patient of paralysis, and in view of his disease it would be difficult for him to survive at Anni, at a distance of 60-70 kms from his home, and requested the second respondent to depute him at PHCKungush, which is 4-5 kms away from his home, so that his family can take care of him. 4. Without waiting for any response from the second respondent, the petitioner came up before this Court by filing the instant petition on August 21st , 2019, for seeking cancellation of transfer, and issuance of a mandamus directing the respondent to complete his normal tenure of 3 to 5 years at the present place of posting, i.e. PHC-Kungush. 5. We have heard Mr. P.P.Chauhan, learned counsel, for the petitioner, Mr. Ashok Sharma, learned Advocate General, for respondents No. 1 to 3 and Mr. Raj Kumar Negi, learned counsel, for respondent No.4. 6. 5. We have heard Mr. P.P.Chauhan, learned counsel, for the petitioner, Mr. Ashok Sharma, learned Advocate General, for respondents No. 1 to 3 and Mr. Raj Kumar Negi, learned counsel, for respondent No.4. 6. The petitioner has come up with two fold contentions, firstly that his transfer was shown without TTA and JT, as clearly mentioned in order dated 26-02-2018, on mutual basis, which is contrary to the grounds because he had never sought his transfer on mutual basis, and secondly he being a person with disability, securely covered under Rights of Persons with Disabilities Act, 2016 (after now called Disability Act), and Rights of Persons with Disabilities Rules, 2017 (after now called Disability Rules), he is entitled to posting at the place of his choice and nearer to his home. 7. To answer first contention vide transfer order dated 26-02-2018 (annexure P-1), issued by Additional Director Health Services, HP, it was clearly mentioned in it that the transfer is viceversa on mutual basis, and both incumbents will not be entitled for TTA/JT. After this, the petitioner never raised his grievance that order dated 26-02-2018 was without his consent, but requested for deputation. The department conceded to his request and posted him on deputation for one year, w.e.f. 25-05-2018, vide annexure P-3. Even after that when the petitioner made representation for his posting nearer to his home, vide annexure P-4, he never raised his grievance that he never consented for mutual transfer. 8. Sh. P.P.Chauhan, learned counsel for the petitioner submits that in the transfer order it is clearly mentioned that he is transferred vice-versa on mutual basis, but his consent was never taken. Therefore, it is implied that the petitioner has never given his consent. This submission is mis-conceived. 9. Whenever any employee raises such a grievance that the transfer of mutual consent did not have his signatures, he is expected to raise his grievance at the earliest point of time. Not only that, such employee can file complaint against the beneficiary, replacing her, and can also ask for the copy and details of such communication. She can also ask to compare her signatures with that on the alleged request letter for mutual transfer. If such communication was through e-mail, then e-mail address and IP number of the device. Not only that, such employee can file complaint against the beneficiary, replacing her, and can also ask for the copy and details of such communication. She can also ask to compare her signatures with that on the alleged request letter for mutual transfer. If such communication was through e-mail, then e-mail address and IP number of the device. In case an employee fails to bring her grievance to the notice of the authorities at the earliest point of time, then she is not entitled to raise it at a later stage. If an employee take such a plea beyond a reasonable time then it is afterthought, and in such a situation such plea loses all its force. 10. In the present case, the petitioner for first time raised the plea that mutual transfer was without his consent, after a gap of one and half years. After such a long gap of time, this plea cannot be entertained, and therefore, first contention is devoid of any force and is rejected. 11. Coming to the second contention, Mr. P.P.Chauhan, Advocate, counsel for the petitioner submits that an employee, who has obtained certificate of disability under Disability Act and Disability Rules, is entitled to be posted at the place of his convenience. On the other hand, Mr. Ashok Sharma, learned Advocate General states that State had not formulated any policy, and in the absence of a policy, an employee cannot claim such kind of benefit. Learned Advocate General further contends that it is highly imaginary and illusory that a person can claim posting at the place of choice by seeking parity with the benefits granted in the chapter of the Disability Rules. 12. It shall be appropriate to reproduce the Section 20 of the Rights of Persons with Disabilities Act, 2016, which is extracted as follows:- "20. Non-discrimination in employment. - (1) No Government establishment shall discriminate against any person with disability in any matter relating to employment: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, exempt any establishment from the provisions of this section. (2) Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability. (3) No promotion shall be denied to a person merely on the ground of disability. (2) Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability. (3) No promotion shall be denied to a person merely on the ground of disability. (4) No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service: Provided that, if an employee after acquiring disability is not suitable for the post he was holding, shall be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (5) The appropriate Government may frame policies for posting and transfer of employees with disabilities." 13. We are in full agreement with the stand of learned Advocate General. In the absence of a Policy formulated by the concerned government, specifically providing for transfer and posting at the place of choice or closer to the home, this court has no jurisdiction to encroach upon the field of Executive, by crossing Laxman Rekha. We are afraid that we can do so. Consequently the second contention is rejected. 14. For all these reasons, the petition has no force and it is dismissed. The pending applications, if any, are also disposed of accordingly.