Delhi High Court
Smt. Shakuntla Rani vs M.C.D. And Anr. on 27 July, 2006
Author: Manju Goel
Bench: Manju Goel
JUDGMENT
Manju Goel, J.
1. The petitioner in this writ petition seeks a mandamus to restrain the respondents from reverting the petitioner from the post of Public Hearth Nurse (in short `PHN’) to the post of `A’ Grade Staff Nurse under the guise of a transfer and for a writ of mandamus staying the purported transfer order dated 26.3.2004. The facts of the case as narrated in the writ petition are as under:
The petitioner was initially engaged as `A’ Grade Staff Nurse. Since 1.4.1999 she has been serving as a PHN at the School Hearth Services, Rohini Zone, Delhi. The post of PHN carries the scale of Rs.5500-9000 whereas the post of `A’ Grade Staff Nurse carries the scale of Rs.5000-8000. It is alleged that the respondent is attempting to revert the petitioner from the post of PHN to the lower scale of `A’ Grade Staff Nurse which will result in a loss of higher pay-scale to the petitioner. While the `A’ Grade Staff Nurse has no fixed timing and involves night shifts, the post of PHN is field based service having fixed duty timings. It is also stated in the petition that the petitioner who is a widow and has a 14 years (17 years now) old daughter is unable to leave her daughter unattended and perform the night shifts as a `A’ Grade Staff Nurse.
2. It is mentioned in the petition that this Court restrained the MCD on 23.3.2004 in WP(C) 6371/2003 from posting Smt. Lata Arora in Bara Hindu Rao Hospital where there was no post of PHN. It is further submitted that vide order dated 26.3.2004 the transfer of Smt. Lata Arora was kept in abeyance but in order to preempt similarly placed employees from claiming similar benefits, the respondent corporation issued the order transferring the petitioner from School Heath Services, Rohini Zone to Bara Hindu Rao Hospital. It is alleged that this order was virtually an order of reversion and demotion. it is now further submitted that vide judgment dated 16.7.2004, WP(C) No.6371/2003 has been disposed of whereby the respondents have been given time up to 31.12.2004 to consider the petitioner (Smt. Lata Arora) for appointment as a direct recruit to the post of PHN in compliance with the award dated 27th September, 2002. Further it is directed in that judgment that in case the respondents desire to amend the recruitment regulations so as to promote the petitioner (Smt. Lata Arora) they may take steps for doing so before 31.12.2004. It was directed that Smt. Lata Arora would not be reverted from that post till the time she was considered for appointment/promotion.
3. In the counter it is stated that the petitioner was never promoted to the post of PHN and that she was posted in the School Health Services, Rohini and that during such posting she was only drawing her salary in her own pay-scale as a staff nurse, that there is no application to promote her to the post of PHN, that the petitioner was working as a staff nurse in diverted capacity at RBTB Hospital, that there was a shortage of staff nurse at the Hindu Rao Hospital because of which the petitioner had to be transferred, that there has been no reversion or demotion by the impugned of transfer, that she was transferred on account of administrative reasons and that the petition be dismissed.
4. The relevant posting order has been placed on the record. Vide order dated 30.3.1999 the petitioner has been posted in SHS, Rohini Zone. It is also mentioned in the order that she will continue to draw her salary from RBTB Hospital. By order dated 5.4.1999 the petitioner was directed to report to the DHO (SHS) Rohini for her further duty. A common order was passed on 26.8.2002 informing all concerned that the `A’ Grade Staff Nurse, LHV & ANM working on diverted capacity in various medical institutions of Heath Department were being relieved and were directed to report to the parent department with immediate effect. However, subsequently on 30.9.2002 the petitioner was transferred and posted in SHS with immediate effect. She was to draw salary against a vacant post of PHN. This is the first order in which there is any mention of the word `PHN’.
5. The admitted position is that PHN is a promotion post. It is also admitted that the petitioner has not gone through the process of promotion. Without going through the process of promotion she cannot claim any right on the post simply on account of her having worked on that post for sometime. A recent judgment of the Supreme Court in the case of Secretary, State of Karnataka and Ors. v. Uma Devi and Ors. 2006 (4) SCALE 197 squarely prevents such an order being passed by this Court.
6. Posting is the privilege of the Administrators. It is well settled that the courts should not interfere in the discretion of the Administrator in the matter of posting. A transfer can be opposed only when it is mala fide or is made by an authority which is not authorized to make a transfer order or when it is patently illegal. None of the three conditions exist in the present case. Although it is alleged that the transfer order of petitioner came by way of knee jerk reaction to the order of this Court in the case of Smt. Lata Arora, the allegations are only bald and is a matter of conjectures and surmises and not based on any facts.
7. The petitioner now stakes his claim on the ground of equality with Smt. Lata Arora. Suffice it to say that the petition has not been framed with a view to seek equity with Smt. Lata Arora. The case of Smt. Lata is cited only by way of precedence. Whether the equality principles are violated if the petition is not granted has not arisen in the writ petition. It may be further stated here that Smt. Lata had obtained an award from the Industrial Tribunal and that award was sought to be implemented in the WP(C) No.6371/2003. As such the scope of WP(C) 6371/03 and the present writ petition are quite different. Therefore, the petition has no case so far as the merit is concerned. The petition has to be dismissed and is accordingly so ordered.
8. This will, however, not prevent the respondents from considering the petitioner’s request of an appropriate posting keeping in view her personal circumstances. The petitioner is also not precluded from making any claim in any appropriate forum which may be available in law.