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2025 DIGILAW 194 (HP)

Ankita Sharma v. State of Himachal Pradesh

2025-02-14

RANJAN SHARMA

body2025
JUDGMENT : Ranjan Sharma, J. 1. Petitioner, Ms. Ankita Sharma a Staff Nurse has come up before this Court seeking the following reliefs: “That any appropriate writ/order or direction in the nature of certiorari may kindly be issued and the respondent NO.3 may kindly be directed to relieve the present petitioner from IGMC Shimla, District Shimla, Himachal Pradesh and petitioner may kindly be allowed to join at Civil Hospital Amb, District Una, Himachal Pradesh in compliance of the office order dated 13.12.2024 [Annexure P-1]”. 2. Upon due selection, the petitioner was appointed as Staff Nurse, on contract basis and she joined as such in Indira Gandhi Medical College and Hospital on 24.11.2021 and as per the applicable norms-policy, the petitioner was regularized on 26.06.2024 [temporary deployed in Civil Hospital, Amb.] since the petitioner is borne on Establishment of Indira Gandhi Medical College and Hospital therefore, in view of various hardships [as in borne such from para 3 of writ petition], the petitioner submitted a representation to competent authority for redressal of hardships and after due approval of higher authorities, the Respondent No.2-Director, [Health], Himachal Pradesh, Shimla, acceded to the request of petitioner by issuing an order dated 13.12.2024 [Annexure P-1], transferring the petitioner, without TTA/JT from IGMC, Shimla to Civil Hospital, Amb, District Una. 3. Now the grievance of petitioner is that in terms of orders dated 13.12.2024 [Annexure P-1], though the Respondent No.-2-Director, Health Services, Himachal Pradesh has transferred the petitioner from Indira Gandhi Medical College [IGMC], Shimla to Civil Hospital Amb, District Una without TTA/joining time, but, the Respondent No.3-Medical Superintendent, IGMC, Shimla, under whom petitioner was working, has not relieved the petitioner for Civil Hospital, Amb., despite representation dated 08.02.2025 [Annexure P-4]; whereas, other similar by placed incumbents [Staff Nurses], who were transferred alike the petitioner were relieved from IGMC by applying different yardsticks which was alleged to be unfair and unreasonable. 4. The matter was listed before this Court on11.02.2025, when, this Court passed the following orders: “ CWP No. 2274 of 2025 Heard. Notice. Mr. Vishal Panwar, Learned Additional Advocate General, appears and waives service of notice on behalf of respondents No. 1 to 3. As prayed for, let reply be filed or Instructions be furnished within a week. CMP No. 2140 of 2025 Notice in aforesaid terms. Notice. Mr. Vishal Panwar, Learned Additional Advocate General, appears and waives service of notice on behalf of respondents No. 1 to 3. As prayed for, let reply be filed or Instructions be furnished within a week. CMP No. 2140 of 2025 Notice in aforesaid terms. Grievance of the petitioner is that the petitioner after due approval of the Higher Authorities was transferred from IGMC, Shimla to Civil Hospital, Amb, District Una, H.P., without TTA/JT on 13.12.2024 [Annexure P-1] but, the petitioner has not been relieved as yet, which is contrary to the mandate contained in Communication dated 04.09.2023 [Annexure P-2] whereby a transferred employee, is to be relieved within a maximum period of five days, failing which, an employee shall be deemed to have been relieved. Faced with this situation, Learned State Counsel prays for and is granted three days’ time to file reply or to furnish Instructions in the matter. List the matter on 14.02.2025.” 5. Pursuant to orders dated 11.02.2025, the Learned State Counsel has furnished Instructions dated 14.02.2025 [Taken on Record], as conveyed to him by Respondent No.3-Medical Superintendent, IGMC, Shimla, stating therein that the petitioner could not be relieved, in view of transfer orders dated 13.12.2024 [Annexure P-1], as the matter is being submitted to Government attributing shortage of Staff Nurses in IGMC, in view of the decision dated 6/9.12.2024, which permits relieving from IGMC after approval of the Government on file. 6. Taking into account the entirety of the facts and circumstances, this Court is of the considered view that the instant petition deserves to be allowed, by directing the respondents to relieve the petitioner, on the basis of transfer orders dated 13.12.2024 [Annexure P-1], from IGMC, Shimla to Civil Hospital, Amb, District Una, for the following reasons: (i) Transfer orders dated 13.12.2024 [Annexure P1], transferring the petitioner from IGMC, Shimla to Civil Hospital, Amb, District, Una were issued by Respondent No.2-Director [Health], Himachal Pradesh, after due approval of Higher Authorities then, Respondent No.3-[Medical Superintendent, IGMC] as per Instructions dated 14.02.2025, cannot deny the relieving of petitioner, on the plea, that the matter is being submitted to Government, for seeking necessary directions, reveals total non-application of mind by Respondent No.3 herein. (ii) Even the transfer orders dated 13.12.2024 [Annexure P1], passed by Respondent No.2-Director of Health Services are still operational and the same has not been revoked or annulled or modified as yet. (ii) Even the transfer orders dated 13.12.2024 [Annexure P1], passed by Respondent No.2-Director of Health Services are still operational and the same has not been revoked or annulled or modified as yet. Instructions furnished to this Court, nowhere indicate that the transfer orders of petitioner have been revoked/annulled or modified. In these circumstances, once an order of transfer is passed, conferring a right in favour of an employee to be relieved within a period of maximum 5 days in terms of Government communication dated 04.09.2023 [Annexure P-2], then, such a right can neither be restricted/curtailed or defeated in a discriminatory manner, by resorting to pick and choose criteria, by transferring and relieving similar incumbents [staff Nurses] from IGMC to other places, by exercising its discretion unequally and in discriminatory manner, by ignoring the Communication dated 04.09.2023 [Annexure P-2] and the State’s action cannot be permitted to operate, so as to result in non-relieving of petitioner since 13.12.2024 till day [February, 2025], which ex-facie smells of malice and unfair, unreasonable, discriminatory application of norms and abuse of discretion by ignoring norms. (iii) Shortage of staff, if any, as revealed in Instructions dated 14.02.2025, cannot be the basis for not relieving the petitioner, in view of the fact, that the right to be relieved, on transfer, accrues as per communication dated 04.09.2023 [Annexure P-2], which clearly mandates that in case, an employee, is not relieved within a maximum period of 5 days from the date of issuance of transfer orders, then, such an employee shall be deemed to have been relieved from the present posting. The object and intent of prescribing the maximum 05 days period for relieving/not relieving, an employee, is to enable the authorities concerned to apply its mind to the orders issued and the need for referring back the same for cancellation or revocation or modification in case, the implementation was not feasible, but with the rider that such reference back was without resorting to any discrimination. Even the instructions dated 14.02.2025, do not point out that during the period of 5 days from date of issuance of transfer orders i.e. 13.12.2024 i.e. upto 18.12.2024 and even in Instructions dated 14.02.2025, nothing has been placed on record to reveal that case was referred back to Respondent No.2 or higher authorities [during ban period, as required], for reconsideration [but the things are still being contemplated], reveals inaction, just to defeat and curtail the right of deemed petitioner of relieving, after 5 days [i.e. on 18.12.2024], as per communication dated 04.09.2023 [Annexure P-2]. (iv) Further, managing manpower including shortage of staff is an act to be undertaken by the Respondents, by resorting to filling up of posts, in which an employee has no role. In these circumstances, the Respondents-State Authorities or issuance of transfer orders coupled with communication dated 04.09.2023 [Annexure P-2], cannot take away or curtail the right of petitioner of deemed relieving due to slackness or inaction of relieving authority [Respondent No.3], in instant case. (v) The minutes of meeting dated 6/9.12.2024 annexed with Instructions dated 14.02.2025 for not relieving any staff member on transfer, except with the prior approval of Government on departmental file, ex-facie indicates malice in State action, by relieving others from IGMC to other places whereas the petitioner has not been relieved since 13.12.2024 [Annexure P-1], till February 2025, amounts to applying two different yardsticks, between same set of incumbents, which cannot be permitted to operate, for the reason, that even discretion cannot be exercised in a discriminatory and arbitrary manner, as is writ large in instant case. Accordingly, the non-relieving of the petitioner, in the facts of instant case is declared arbitrary and illegal. 7. In view of the above discussion, and for the reasons recorded hereinabove, the instant writ petition is allowed, in the following terms: (i) State Authorities including Respondent No.3-Medical Superintendent, IGMC, Shimla, is directed to relieve the petitioner on the basis of transfer orders dated 13.12.2024 [Annexure P-1], from IGMC, Shimla to Civil Hospital, Amb, District Una, on or before 19.02.2025 forthwith; (ii) Non-relieving of petitioner, on the basis of orders dated 13.02.2024 [Annexure P-1], being contrary to communication dated 04.09.2023 [Annexure P-2], reveals non-application of mind by State Authorities, including, Respondent No.3-Medical Superintendent, IGMC, Shimla which is deprecated; when, discrimination is writ large in instant case; (iii) Parties to bear respective costs; 8. In view of the above, the instant petition is disposed of, so also the pending miscellaneous application(s), if any.