Allahabad High Court
Sarita Devi vs State Of U.P. Thru. Prin. Secy. ... on 15 September, 2023
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:59384
Court No. - 20
Case :- WRIT - A No. - 6693 of 2023
Petitioner :- Sarita Devi
Respondent :- State Of U.P. Thru. Prin. Secy. Medical And Health And Family Welfare Lko And 6 Others
Counsel for Petitioner :- Mohammad Aslam Beg
Counsel for Respondent :- C.S.C.
Hon'ble Manish Mathur,J.
1. Heard learned counsel for petitioner and learned State Counsel for opposite parties.
2. Petition has been filed challenging order dated 29.06.2020 whereby petitioner who was working on contractual basis on post of Auxiliary Nursing Midwife has been transferred from Community Health Centre, Madhoganj, District Hardoi to Community Health Centre, Kothawan, District Hardoi.
3. It has been submitted that although petitioner has joined in pursuance of impugned transfer order but since transfer order is contrary to the contract conditions pertaining to petitioner dated 29.06.2015, it constitutes a continuing cause of action due to which present petition will be maintainable despite laches.
4. It has been submitted that clause (1) of petitioner's contract of engagement clearly stipulates that petitioner has been engaged in service for a particular place and cannot be transferred elsewhere. It is therefore submitted that impugned transfer order is contrary to the contract conditions pertaining to petitioner.
5. Similar controversy has already been adjudicated upon by this Court in WRIT - A No. - 58903 of 2015, Gaurav Diwedi v. State of U.P. and others in which the petition was allowed on the same ground which are as follows:-
"Sri Vikram Bahadur, learned Standing Counsel files counter affidavit today. Same is taken on record.
Heard Sri Ashwani Kumar Yadav, learned counsel for the petitioner, Sri H.K. Mishra, learned counsel for the respondent no.2 and Sri Vikram Bahadur, learned Standing Counsel for the respondents no.1,3,4,5 and 6.
Petitioner is seeking quashing of the order dated 16.9.2015 whereby he has been adjusted in the Community Health Center, Jaspura.
According to the petitioner, he was posted at Prathmik Health Center, Mahuwa. By the impugned order he has been adjusted in the Community Health Center, Jaspura and in his place one Ashish Kumar has been adjusted in the Primary Health Center, Mahuwa. According to the petitioner, he is a contractual employee and he cannot be transferred in view of the terms and conditions of his appointment order, which has been filed as Annexure-2 to the writ petition and para-6 of the appointment order clearly mentions that contractual employee shall not be transferred.
In the counter affidavit, which has been filed today, it has been stated that the petitioner has not been transferred but only adjusted at Jaspura but learned Standing Counsel could not explain as to what is adjustment since in place of the petitioner one Sri Ashish Kumar has been adjusted in the Primary Health Center, Mahuwa which was the earlier place of posting of the petitioner although it has been stated that this arrangement has been made in the administrative interest. The terms and conditions have not been disputed.
However, in para-12 of the counter affidavit serious allegations have been made against the petitioner that he took away Computer System and KVA Generator of the Primary Health Center, Mahuwa and that he also took away Attendance Register of the contractual and permanent employees. It is also alleged that he has not reported for Indra Dhanush Mission and has also committed financial loss.
May be these are the serious allegations against the petitioner and he is being adjusted at Jaspura on account of these allegations, but the appropriate course is to take action against the petitioner, who is only a contractual employee. In any case he cannot be transferred from Primary Health Center, Mahuwa to Community Health Center, Jaspura in view of the provisions of para-6 of the Terms and Conditions of the Contractual Appointment Order.
For the reasons aforesaid, the impugned order dated 16.9.2015 is quashed.
The writ petition stands allowed."
6. Upon consideration of submissions advanced by learned counsel for petitioner and perusal of material on record, it is quite evident that clause (1) of petitioner's contract dated 29.06.2015 clearly stipulates that petitioner has been engaged in service for a particular post in a particular place only and there is a prohibition indicated with regard to her transfer elsewhere.
7. It is thus quite evident that impugned order has been passed contrary to contract conditions pertaining to petitioner's service. The judgment indicated by learned counsel for petitioner in the case of Gaurav Diwedi(supra) is also on the same point.
8. Considering aforesaid facts and circumstances, the petition is allowed at the admission stage itself quashing impugned transfer order dated 29.06.2020 by issuance of a writ in the nature of Certiorari.
Order Date :- 15.9.2023
kvg/-
