SUSHILA TIWARI Vs. STATE OF M P

JUDGEMENT

(1.) This petition under Article 226 of the Constitution of India has been filed challenging the order dated 5-3-2012, by which the petitioner, who was working on the post of Auxiliary Nurse Midwife in Community Health Centre, Naogaon, District Chhattarpur, is sought to be transferred to Sub Primary Health Centre, Koutheha (Gourihar), on the ground that the aforesaid order has been issued treating the petitioner as surplus in the Community Health Centre, Naogaon, whereas, in view of the order passed by the M.P. State Administrative Tribunal, in the Original Application of the petitioner, she is not surplus in the said Community Health Centre. On the other hand, the respondent No. 4 is surplus who was required to be transferred, but mala fidely she has been accommodated and the petitioner has been transferred. It is contended that the dispute with respect to the counting of seniority of the petitioner in the said place for the purposes of assessing whether she was surplus or not, had already come to an end and this was specifically ordered by the Tribunal that the petitioner is to be treated as senior, yet illegally the respondent No. 4 who is surplus is retained and the petitioner is sought to be transferred. In view of the aforesaid, it is claimed by the petitioner that the order impugned is bad in law and is liable to be quashed. This Court has entertained the writ petition and since a caveat was filed by the respondent-State, the notices were delivered to the respondents and they were asked to file the effective return. The respondent-State has filed the return contending that since the petitioner was working in the Community Health Centre, Naogaon, with effect from the year 1998, whereas, the respondent No. 4 was posted in the said Community Health Centre on 18-2-1988, the petitioner has rightly been found surplus and has been transferred by the order impugned. It is contended that since there is a report submitted in this respect by the Chief Medical and Health Officer, Chhattarpur, the petitioner was rightly transferred and that being so, the petitioner is not entitled to any relief. The respondent No. 4 has also supported the action of respondents No. 1 to 3. A rejoinder has been filed by the petitioner controverting the allegations made by the respondents in their return.

(2.) Learned counsel for the parties are heard at length. The record is examined.

(3.) Undisputedly, the petitioner was appointed as Auxiliary Nurse Midwife vide order dated 27-11-1981. It is not in dispute that the respondent No. 4 was appointed after seven years of appointment of petitioner as is clear from Document No. R/3 filed by the respondents along with their return. Therefore, from the initial date of appointment the petitioner was senior to the respondent No. 4. However, it appears that there were certain excess staff posted and, therefore, the policy was made by the State Government for adjustment of those excess staff. Prior to this, the final adjustment/absorption of petitioner was already ordered on 28-2-1994 by the Chief Medical and Health Officer, Chhattarpur. In terms of policy dated 19-5-1997, list of surplus staff was to be prepared. One such list was prepared, according to which, the respondent No. 4, who was treated to be surplus in the Community Health Centre, Naogaon, was sought to be posted elsewhere. However, for the said purposes of posting, the Chief Medical and Health Officer, Chhattarpur, was authorised. It further appears that the order of posting in respect of respondent No. 4 was issued by the Chief Medical and Health Officer Chhattarpur on 6-8-1997 transferring her to Chandrapura Gourihar. Pursuance to this order, the respondent No. 4 was required to be relieved, but the Chief Medical and Health Officer made a change in the posting and issued the order dated 13-11-1997, by which the respondent No. 4 was accommodated in Community Health Centre, Naogaon, and in her place, the petitioner was sought to be transferred to Chandrapura Gourihar. This was the order which was challenged by the petitioner in the M.P. Administrative Tribunal by filing Original Application No. 119/1998. The respondent No. 4 was a party in the said litigation.