Dismissed

Monya Riba (Hage) v. the State of Ap and 2 Ors.

Gauhati HC8 Dec 2021WP(C)/273/2021

Case brief

AI extract

What is this about?

The Division Bench dismissed a writ petition challenging the cancellation of a transfer order issued to a contractual National Health Mission employee. The court held that since the initial transfer was erroreate due to lack of mutual consent and procedural irregularity, no fault was found in canceling it despite the employee having joined the new posting.

What did the court decide?

Impugned order cancelling the transfer was upheld; writ petition dismissed.

Monya Riba (Hage) Vs the State of Ap and 2 Ors. — Service and Employment | Gauhati HC (2021)

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Page No.# 1/4

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GAHC040008062021

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH)

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Case No. : WP(C) 273/2021

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1:Monya Riba (Hage)

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W/o Shri Hage Duyu, Office of District Medical Office Ziro, Lower Subansiri District, Arunachal Pradesh. Mobile No. 8258977842

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VERSUS

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1:THE STATE OF AP and 2 Ors.

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Represented by the Secretary, Department of Health and Family Welfare, Govt. of Arunachal Pradesh, Naharlagun

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2:The Mission Director (MD) National Health Mission (NHM) Government of Arunachal Pradesh Naharlagun

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3:Dusu Tacho

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S/o Dusu Tatung C/o District Medical Officer Ziro Lower Subansiri District Arunachal Prades

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Advocate for the Petitioner : Khoda Tari

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Advocate for the Respondent : Taba Tagum

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Page No.# 2/4

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BEFORE

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HON’BLE MR. JUSTICE SANJAY KUMAR MEDHI

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Judgment & Order

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08.12.2021

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Heard Shri K Tari, learned counsel for the petitioner. Also heard Shri T Tagum, learned Standing Counsel, Health Department, Arunachal Pradesh whereas the respondent no. 3 is represented by Shri R Saikia, learned counsel.

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2. The petitioner, in the instant case, has put to challenge an order dated 24.08.2021 by which an order of transfer dated 30.07.2021 was cancelled and that too, after joining of the petitioner in the new place of posting. The petitioner is a District Accountant Manager (DAM) working in the National Health Mission (NHM), Government of Arunachal Pradesh on contractual basis. The petitioner had served in various places and in the year 2009, she was transferred to Daporijo under the District Medical Office, Upper Subansiri District. It is the case of the petitioner that he had served at Daporijo for about 13 years and thereafter, vide an order dated 30.07.2021, the petitioner was transferred from Daporijo to Ziro under the District Medical Office, Lower Subansiri District. The petitioner was, accordingly released from Daporijo and she joined her new place of posting at Ziro on 17.08.2021. After about a week from such joining, the impugned order dated 24.08.2021 was issued whereby the transfer of the petitioner from Daporijo to Ziro was cancelled. The petitioner contends that apart from the fact that no reasons have been assigned for such transfer, the same was made at the behest of the Minister of Agriculture, Horticulture, Animal Husbandry, Veterinary, Dairy Development & Fisheries, who is connected to the private respondent. Accordingly, the present writ petition has been filed.

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3. Shri Tari, learned counsel for the petitioner has submitted that the very fact of cancelling the order of transfer after coming into effect is itself an illegality. The learned counsel has also emphasised on the fact that within a period of about 7 days of joining, such transfer was cancelled which cannot be in the interest of public service. The learned counsel fairly submits that though a writ court would be loath in interfering in matters of transfer, in a

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Page No.# 3/4

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matter of this nature where illegality is blatant, this Court would certainly interfere and give the relief to the petitioner.

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4. Per contra, Shri Tagum, learned Standing Counsel submits that the status of the petitioner cannot be treated at par with the status of an ordinary government servant. Admittedly, the petitioner is working on a contractual basis under a particular mission, namely, National Health Mission and as per its terms and conditions, such job is not transferable in normal condition. It is only when there is a request for mutual transfer that a transfer can be effected and in fact, the transfer from Roing to Daporijo was done on mutual consent. The learned Standing Counsel further submits that the order of transfer dated 30.07.2021 was issued erroneously as there was no consent obtained from the private respondent no. 3 and therefore, after detecting the said mistake, the transfer has been cancelled. Shri Tagum, learned Standing Counsel submits that when transfer cannot be claimed as a matter of right or is not done like that of other government servant after a particular tenure is over, the petitioner cannot make any claim for transferring her to a particular place, unless the incumbent in the said place has mutually consented to come in the place of posting of the petitioner.

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5. Shri R Saikia, learned counsel for the private respondent no. 3 has submitted that at no point of time, he had consented to such transfer and in absence of such consent, the order dated 30.07.2021 was erroneously issued. In this connection, by referring to the affidavit-in-opposition filed by the respondent no. 3 on 22.09.2021, more specifically, the Office Memorandum (OM) dated 26.12.2013 annexed as Annexre-3 which contains the guidelines for transfer, Shri Saikia, learned counsel has submitted that as per the said OM, the request for transfer has to be on mutual ground and the same is found in Sl. No.11 of the said OM. The learned counsel accordingly submits that in view of such admitted position, the instant challenge is not sustainable.

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6. It appears that in the instant case though there was an interim order in favour of the petitioner, a writ appeal, being WA/268/2021 was preferred by the private respondent no. 3 in which, the Hon’ble Division Bench vide order dated 23.11.2021 has allowed the appeal by setting aside the interim order dated 31.08.2021 whereby the impugned order was stayed.

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7. On a pointed query, Shri Tari, learned counsel for the petitioner has submitted that though the interim order is not in existence, the petitioner is still at Ziro as she was released from Daporijo.

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8. The fact that the petitioner was released from Daporijo will not stand in the way as the initial order of transfer itself has been cancelled vide the order dated 24.08.2021. Further, since it is an admitted fact that the procedure liable to be followed for transferring a contractual employee under the NHM has not been followed, this Court finds no fault in issuing the impugned cancellation order dated 24.08.2021 by which the transfer order dated 30.07.2021 has been cancelled.

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9. In view of the above, this Court is of the view that no case for interference is made out and the writ petition is accordingly dismissed.

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10. There shall be no order as to cost.

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JUDGE

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Comparing Assistant

Monya Riba (Hage) v. the State of Ap and 2 Ors.

Case brief

What is this about?

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Monya Riba (Hage) v. the State of Ap and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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