High Court
Case Details
WA 280/2013 BEFORE HON’BLE MR. JUSTICE A.K.GOEL, THE CHIEF JUSTICE
Legal Reasoning
HON’BLE MR. JUSTICE A K GOSWAMI JUDGMENT AND ORDER (CAV) (A.K.Goswami, J) This appeal is directed against the order dated 21.8.2013 passed by the
Decision
learned Single Judge, dismissing the writ petition. We have heard Mr. HRA Choudhury, learned senior counsel for the appellan 2. t and Mrs. A.Verma, learned Standing Counsel, Health, appearing for the responde nts. 3. Writ appellant, who is an Auxillary Nurse and Mid-wife (ANM), had filed the writ petition challenging the order of transfer dated 6.6.2013 passed by th e Respondent No.2, transferring her from Dagaon PHC and placing her services at the disposal of Joint Director of Health Services, Morigaon against a vacant pos t of ANM. 4. The learned senior counsel for the appellant submits that the impugned t ransfer order was not issued in public interest but was issued as a measure of p unishment following an enquiry. Learned senior counsel also submits that the enq uiry was conducted in the aftermath of a volatile situation erupting on the deat h of a new born baby in Dagaon PHC on 29.10.2012. It is submitted that in the E nquiry Report dated 20.12.2012, without any justification, the Enquiry Officer, who is the Circle Officer, Sadar Revenue Circle, suggested, amongst others, that action against the appellant should be taken for her lapses and therefore, the order of transfer is wholly unjustified. Mr. HRA Choudhury, learned senior counsel also submitted that if the ord 5. er of transfer is given effect to, the education of her daughter, who is aged ab out 16 years and studying in Higher Secondary 1st Year and that of her son, who is about 10 years old and is studying in Class-V, will be affected. He has als o pointed out Annexure-2 letter dated 19.6.2013 of the Memo of Appeal, issued by the Sub-divisional Medical and Health Officer, Dagaon PHC to the Director o f Health Services, Assam requesting withdrawal of the transfer order because of institutional requirement. Mrs. A.Verma, learned Standing Counsel, Health submitted that the Enquir 6. y Officer had noted that the petitioner had refused to attend Rizuar Begum, whos e new born baby had died, when she was taken to the Hospital at about 2 AM on 29 .10.2012 on the ground that she was not on duty. The learned Standing Counsel su bmits that though the enquiry was conducted, the impugned order of transfer cann ot be termed as a punitive transfer and the enquiry was conducted only to enable the authorities to have an objective assessment of the situation. The learned Single Judge has held as follows: We have heard the learned counsel for the parties and perused the materi 7. als on record. 8. (cid:28)On the previous occasion, the departmental counsel had produced the record whic h was perused by the Court. Today, when the matter is called upon, learned Stand ing Counsel submits that show cause notices have been issued to the petitioner a nd another staff to initiate departmental proceeding. Though conducting of internal enquiry was strictly not necessary before issuanc e of the impugned order, the same having been conducted to enable the authoritie s to take an objective view of the situation, it cannot now be used as a ground to assail the order of transfer. The situation which has come to light because o f the enquiry report justifies issuance of the order of transfer. Decision of the authority to post the petitioner at another place to mee t the situation cannot be faulted. No case for interference is made out. This Court finds no merit in the w rit petition, which is accordingly dismissed. Status quo order passed earlier stands vacated. (cid:29) 9. We agree with the learned Single Judge that merely because an enquiry wa s conducted in connection with an incident, transfer order cannot be branded as punitive. By the impugned order of transfer, no stigma is attached on the writ a ppellant. However, we refrain from making any observation with regard to the cor rectness or otherwise of the findings or observations made in the Enquiry Report dated 20.12.2012. 10. In Annexure-3 of the writ petition, which is a representation submitted by the appellant to the Director of Health Services for withdrawal of the trans fer order dated 6.6.2013, the appellant had stated that she has been working as ANM since 22.4.1988 at Dagaon PHC. However, in the Memo of Appeal, it is stated that she joined as ANM on 22.4.1988 at Dagaon PHC and after about a year, she wa s transferred to Bhurbandha PHC and that she was again transferred to Dagaon PHC after about 11 months. Thus, in any view of the matter, the writ appellant had served Dagaon PHC for more than 20 years. The service of the writ appellant is a transferable one and transfer of a Government Servant in a transferable service is a necessary incident. An order of transfer may result in some inconvenience to the government servant and his/her family. Suffering of some hardship may als o be inevitable. With regard to the letter dated 19.6.2013 issued by the Sub-div isional Medical & Health Officer, Dagaon to Director of Health Services, we only put on record that Director of Health Services, Assam may take note of the cont ents of the said communication and take such steps as may be warranted. 11. The scope of judicial review in a matter of transfer of a government emp loyee is limited. In Airport Authority of India -Vs- Rajeev Ratan Pandey, report ed in (2009) 8 SCC 337, the Apex Court has laid down as follows: (cid:28)10 & &.In a matter of transfer of a government employee, the scope of judicial review is limited and the High Court would not interfere w ith an order of transfer lightly, be it at interim stage or final hearing. This is so because the courts do not substitute their own decision in the matter of t ransfer. (cid:29) 12. In view of the discussions above, there is no merit in the writ appeal a nd no interference is called for with regard to the order of the learned Single Judge. 13. Accordingly, writ appeal is dismissed. No costs.