Sabita Jena vs State Of Odisha And Others
2022 Latest Caselaw 2732 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                            W.P.(C) No.21529 of 2021

        (In the matter of an application under Articles 226 and 227 of the
        Constitution of India.)

      Sabita Jena                                 ....            Petitioner
                                       -versus-
      State of Odisha and others                  ....     Opposite Parties



     Appeared in this case:-
           For Petitioner          :       Mr. D.N. Rath on behalf of A.K.
                                                     Saa and B.K. Mishra

           For Opp. Parties        :                    Mr. Y.S.P. Babu,
                                         Learned Addl. Govt. Advocate for
                                                               O.P. No.1
                                                        Mr. P.K. Muduli,
                                         Learned Addl. Govt. Advocate for
                                                           O.P. No.2 to 4

      Appeared in this case:-

      CORAM:
      JUSTICE A.K. MOHAPATRA

                              JUDGMENT

Date of hearing : 13.05.2022 / date of judgment : 20.05.2022

A.K. Mohapatra, J.

1. Heard Mr. D.N. Rath along with Mr. A.K. Saa, learned counsel for the petitioner, Mr. Y.S.P. Babu, learned Additional Government

Advocate for the Opposite Party No.1 as well as Mr. P.C. Das, learned counsel for the State. Perused the record.

2. The present writ petition has been filed by the petitioner with a prayer to quash the order No.10458/OMC/Personnel/2021 dated 16.07.2021 under Annexure-14 passed by the Opposite Party No.3 and the consequential relieve order issued by the Opposite Party No.4 bearing Order No.10486 / OMC / DISP / 2021 dated 17.07.2021 under Annexure-15. Under the impugned order dated 16.07.2021, as per Annexure-14, the petitioner has been transferred from Bhubaneswar to Jiling Longalota Iron Ore Mines, Barbil.

3. The case of the petitioner, as culled out from the writ petition, is that the petitioner is working as a Creche Nurse under Odisha Mining Corporation Dispensary, Bhubaneswar. Earlier the petitioner had approached this Court by filing a writ petition bearing W.P.(C) No.7551 of 2021 challenging the order of transfer issued by the Opposite Party No.2 whereunder the petitioner was transferred from OMC Dispensary at Bhubaneswar to Jiling Longalota Iron Ore Mines, Barbil and the consequential relieve over issued by the Opposite Party No.4. This Court vide order dated 26.02.2021 disposed of the said writ petition directing the Opposite party No.2 to consider the request of the petitioner and to cancel the transfer order keeping in view the facts that the husband of the petitioner was likely to undergo a major operation. Pursuant to the order dated 26.02.2021 passed by this Court, the opposite party no.3 vide order dated 23.03.2021 initially cancelled the order of transfer. It is further stated in the writ petition that the Opposite Party No.3 had not only cancelled the order of transfer of the petitioner but provided financial assistance for surgery of her husband.

4. It is further stated in the writ petition that with the Financial Assistance of the General Manager (P&A), Orissa Mining Corporation, Bhubaneswar-Opposite Party No.3, the husband of the petitioner had undergone a successful surgery at the AIIMS, New Delhi. Thereafter, while the husband of the petitioner in process of recovery, the opposite parties passed another transfer order dated 16.07.2021, issued by the Opposite Party No.3, from transferring the petitioner OMC Dispensary, Bhubaneswar to Jilling Langalota Iron Ore Mines, Barbil and further the consequential relief order was also passed.

6. The petitioner was initially appointed as Creche Nurse at Daitari Mines Hospital on 11.09.1996. After she was selected by following due process of recruitment by the Opposite Party No.2. While the petitioner was continuing as such, in the year 2012 the health condition of the husband of the petitioner deteriorated due to cardiac ailment and as a result of which the husband of the petitioner had to undergo regular check-up at S.C.B. Medical College and Hospital, Cuttack and Kalinga Hospital, Bhubaneswar. Therefore, the petitioner made a representation to the authorities seeking her transfer from Daitari Mines to Bhubaneswar OMC Dispensary. Considering the fact that the petitioner has already rendered 16 years of continuous service in the interior area like Daitari Mines Hospital and the fact that her husband is ailing due to cardiac problem, the authorities were pleased to transfer the petitioner from Daitari Mines to Bhubaneswar OMC Dispensary.

6. Mr. Rath, learned counsel for the petitioner submits that the husband of the petitioner is chronic cardiac patient with multiple cardiac ailments. The condition of the husband of the petitioner is serious. In the year 2012, the husband of the petitioner required constant medical supervision and check-up on regular basis. It is further contended by

learned counsel for the petitioner that the petitioner initially joined under the corporation as Creche Nurse in the year 1996 and she was posted in an interior area like Daitari Mines Hospital of the OMC. After serving there continuously for 16 years, the petitioner applied for transfer to OMC Dispensary, Bhubaneswar in the year 2012 i.e. the time when the condition of the husband of the petitioner became very serious which required urgent surgical intervention to save his life. Accordingly, on the representation of the petitioner, the petitioner was transferred to OMC Dispensary, Bhubaneswar. Further he submits that on the request of the petitioner, the Opposite Party Corporation had also released medical advance to a tune of Rs.1,50,000/- in favour of the petitioner for treatment of her ailing husband. He further contends that when the condition of the husband of the petitioner improved gradually, the authorities again passed an order of transfer thereby sending the petitioner to Jilling Langalota Iron Ore Mines, Barbil. Challenging the said order, the petitioner had approached this Court earlier by filing a writ petition, which was disposed of by this Court by directing the authorities to consider the representation of the petitioner and accommodate the petitioner at her present place of posting for a period of three months keeping in view the fact that the husband of the petitioner is likely to undergo major operation. Thereafter the said transfer order was cancelled and the petitioner was allowed to continue at her present place of posting. However, after the petitioner's husband's, surgery was performed at AIIMS, New Delhi, the authority have again passed an order of transfer thereby transferring the petitioner to Jilling Langalota Iron Ore Mines, Barbil and the said order of transfer is subject matter of challenge in the present writ petition.

7. Mr. Rath, learned counsel for the petitioner further contended that there are four posts of nurses in OMC Dispensary, Bhubaneswar. At the moment only three nurses are engaged to perform the duties, therefore, he submits that keeping in view the health condition of the husband of the petitioner as well educational need of her children, the petitioner be adjusted in the place of and continue her at the present place of 4th nurse and she be allowed to continue at the present place of posting on humanitarian ground.

8. Mr. Muduli, learned Advocate appearing for the Corporation, on the other hand, submits that Jilling Langalota Iron Ore Mines, Barbil is a new mines acquired by OMC. He further submits that as per statutory requirement, the operation of the mines can only be permitted subject to certain facilities including the dispensary be made available to the workers in the mines area. The Opposite Party Corporation has constructed a new dispensary at Jilling Langalota Iron Ore Mines, Barbil and the petitioner is the only qualified and eligible Creche Nurse, who can be posted at the new dispensary. It is further submitted by Mr. Muduli, learned counsel for the Corporation that the Opposite Party Corporation has given enough indulgence to the petitioner by accommodating her at OMC Dispensary, Bhubaneswar on her request and on humanitarian ground. Further the Opposite Party Corporation has done whatsoever is legally permissible to help out the petitioner and her family. He further submits that no vested right is conferred under any Law/Rules to continue at a particular place. Moreover, in the present case the petitioner is being transferred on administrative ground.

9. It is further submitted by learned counsel for the opposite parties that while refuting allegation made by the petitioner that Mrs. Latika Dei a creche nurse at OMC Dispensary, Bhubaneswar be transferred in her

place considering the medical leave of the husband of the petitioner, he further contends that said Mrs. Latika Dei is suffering from Colon cancer and as such, she has been accommodated at the OMC Dispensary, Bhubaneswar on humanitarian ground. By order dated 02.06.2011, she is continuing since then and the present petitioner does not stand on a similar footing with Mrs. Latika Dei. It is further submitted that transfer is the incidence of service, therefore, the petitioner cannot demand a particular place of posting as an employee, which is solely within the domain of the employer and the employer after taking into consideration the administrative need can post any employee at any place keeping in mind the best interest of the organization. He further contends that the present writ petition is not at maintainable and as such, the same is liable to be dismissed.

10. Having heard learned counsel for the respective parties, keeping in view the provision of service rules and the policy of transfer of employees, this Court is of the considered view that the Opposite Party No.3 has not committed any illegality by passing the impugned order thereby transferring the present petitioner from her present place of posting to Jilling Langalota Iron Ore Mines, Barbil. Further this Court is of the opinion that the Opposite Party No.3 while passing the impugned order as acted is well within the service condition and the service rules and as such, no fault can be found. Further this Court appreciates the action taken by the Opposite Party No.3 in accommodating the petitioner and given her indulgence while her husband was ailing and she was need of a help. Therefore, the petitioner has no right to continue at her present place of posting.

11. Considering the facts and circumstances of the present case and taking into consideration the grievance of the petitioner shall continue at

her present place of posting by virtue of interim order granted dated 29.07.2021 and the petitioner shall continue at her place of posting, this Court disposes of the writ petition with a direction to the opposite parties to allow the petitioner to continue till end of August, 2022 and thereafter, the impugned order shall came into force unless the same is verify or failed by the Opposite Parties.

12. Accordingly, writ petition is allowed. However, there shall be no order as to cost.

( A.K. Mohapatra ) Judge

Jagabandhu.P.A.