High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .

CWP No. 2490 of 2019.

Decided on: 14

th

October, 2019

Dalip Singh ……Petitioner.

Versus

State of H.P. & Others .…Respondents.

Coram

The Hon’ble Mr. Justice L. Narayana Swamy, Chief Justice.

The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.

Whether approved for reporting?

1

Yes.

For the Petitioner :Mr. H.S. Rangra, Advocate.

For the respondents :Mrs. Rita Goswami & Mr.

Ashwani Sharma,Addl. A.Gs.

for respondents No.1 to 3.

Dharam Chand Chaudhary, J (oral).

Challenge in the instant writ petition

is to the order dated 11.09.2019 (Annexure P-1),

whereby the petitioner, a JBT Teacher, has been

transferred from Government Primary School,

Hansu, under Education Block, Aut to Government

Primary School, Trail, under Education Block, Aut, on

the basis of a D.O. Note.

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Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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High Court of H.P.2. Facts:

2(i). The transfer order has been

challenged on the grounds that the petitioner had

joined his duties at Government Primary School Trail

under Education Block Aut District Mandi on

31.01.1998 and thereafter in the year 2001

transferred to Government Primary School, Roopa

under Education Block Drang at Padhar, District

Mandi. The place Roopa, within the meaning of the

transfer policy, is a hard area. The petitioner

remained/served there for more than 15 years and

in August 2016 was transferred to Government

Primary School, Hansu, the present place of posting.

Thereafter, on 11.9.2019, the petitioner has been

transferred from that School vide impugned order

Annexure P-1.

2(ii) In the month of July 2019, respondent

No.4 was transferred from Government Primary

School Chahatigarh to Government Primary School

Trail under Education Block Aut. She instead of

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High Court of H.P.joining in the said School had challenged the said

order of her transfer by filing O.A. No.7907 of 2019

before the erstwhile H.P. Administrative Tribunal,

which was disposed of with a direction to her to file

detailed representation to respondent No.2.

Respondent No.2, on receipt of the representation,

deferred the transfer of respondent No.4 and

thereafter she managed to get D.O./U.O. Note in

her favour from local MLA for her adjustment.

Respondents No.1 to 3, just to accommodate

respondent No.4, have adjusted her at the present

place of posting of the petitioner and transferred

him from that place to Government Primary School,

Trail, vide impugned order Annexure P-1, on the

basis of D.O. Note.

3. Record

3(i). In view of one of the allegations

levelled in the writ petition regarding transfer order

having been issued on the basis of D.O. Note, we

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High Court of H.P.had called for and perused the record pertaining to

the transfer of petitioner.

3(ii). Record reveals that respondent No.4,

who was under transfer to Government Centre

Primary School, Seri Chahatigarh to Government

Primary School Tarail u/c Primary School (Balu)

Education Block Aut, District Mandi, on the basis of

U.O. Note, received from office of the Chief Minister,

was ordered to be adjusted without TTA/JT either at

GPS (Hansu) vice Shri Daleep Singh (the petitioner),

JBT or GPS Ghalauhati vice Smt. Suman Kumari JBT,

in relaxation of ban on transfers.

4. Whether the order of transfer of the

petitioner in view of the law laid down by this Court

in Sanjay Kumar versus State of Himachal

Pradesh and others, 2013(3), Shimla Law

Cases 1373; and Amir Chand versus State of

Himachal Pradesh 2013(2) Him. L.R. 648 ; is

legally sustainable or not, is a question which has

engaged our attention in this case. The answer

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High Court of H.P.thereto in the given facts and circumstances,

however, would be in negative for the reason that

as per the legal principles settled in the judgments

supra, an elected representative has no right to

claim that a particular employee is transferred to a

particular station. Such choice has been left to be

exercised by the Administrative Head(s) i.e. the

executive and not by the legislators. Whether an

employee has to be transferred and posted out, as

per the ratio of the law laid down in these

judgments has to be decided by the administration.

This Court has also expected from the

Administrative Head(s) to apply their mind and take

a decision to issue order of transfer of the

employees independently and uninfluenced by the

recommendations, if any, made by the political

executive i.e. merely on asking by MLA or Minister.

Not only this, but in the event of any

recommendation is received from the political

executive, the Administrative Department can

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High Court of H.P.always make a back reference stating therein as to

why the recommendations so made cannot be

accepted. In Amir Chand’s judgment cited supra, it

has further been held that whenever transfer of an

employee is not ordered by the departments but on

the recommendations of Minister or MLA, in that

event also, before the order of transfer is issued,

views of Administrative Department should be

obtained. Only thereafter the transfer can be

ordered, if approved by the Administrative Head(s).

The law so laid down is reproduced as under:-

“[81] In addition to the directions issued in the

individual writ petitions, we are of the

considered view that certain general directions

are required to be issued. We have collated the

various directions issued by us in different

cases which have not been complied till today.

After taking into consideration the entire

scenario, we issue the following directions:

1. The State must amend its transfer policy

and categorize all the stations in the State

under different categories. At present,

there are only two categories, i.e.

tribal/hard areas and other areas. We have

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High Court of H.P.increasingly found that people who are

sent to the hard/tribal areas find it very

difficult to come back because whenever a

person is posted there, he first manages to

get orders staying his transfer by

approaching the political bosses and

sometimes even from the Courts. Why

should the poor people of such areas suffer

on this count. We are, therefore, of the

view that the Government should

categorize all the stations in the State in at

least four or five categories, i.e. A, B, C, D

and E also, if the State so requires. The

most easy stations, i.e. urban areas like

Shimla, Dharamshala, Mandi etc. may fall

in category A and the lowest category will

be of the most difficult stations in the

remote corners of the State such as Pangi,

Dodra Kawar, Kaza etc. At the same time,

the home town or area adjoining to home

town of the employee, regardless of its

category, otherwise can be treated as

category A or at least in a category higher

than its actual category in which the

employee would normally fall. For

example, if an employee belongs to

Ghumarwin, which is categorized in

category B, then if the employee is serving

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High Court of H.P.in and around Ghumarwin, he will be

deemed to be in Category A.

2. After the stations have been

categorized, a database must be

maintained of all the employees in

different departments as to in which

category of station(s) a particular

employee has served throughout his

career. An effort should be made to ensure

that every employee serves in every

category of stations. Supposing the State

decides to have four categories, i.e. A, B,

C, D, then an employee should be posted

from category A to any of the other three

categories, but should not be again

transferred to category A station. If after

category A he is transferred to category D

station, then his next posting must be in

category B or C. In case such a policy is

followed, there will be no scope for

adjusting the favourites and all employees

will be treated equally and there will be no

heart burning between the employees.

3. We make it clear that in certain hard

cases, keeping in view the problems of a

particular employee, an exception can be

made but whenever such exception is

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High Court of H.P.made, a reasoned order must be passed

why policy is not being followed.

4. Coming to the issue of political

patronage. On the basis of the judgments

cited hereinabove, there can be no manner

of doubt that the elected representative do

have a right to complain about the working

of an official, but once such a complaint is

made, then it must be sent to the head of

the administrative department, who should

verify the complaint and if the complaint is

found to be true, then alone can the

employee be transferred.

5. We are, however, of the view that

the elected representative cannot

have a right to claim that a particular

employee should be posted at a

particular station. This choice has to

be made by the administrative head,

i.e. the Executive and not by the

legislators. Where an employee is to

be posted must be decided by the

administration. It is for the officers to

shows their independence by ensuring

that they do not order transfers

merely on the asking of an MLA or

Minister. They can always send back a

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High Court of H.P.proposal showing why the same

cannot be accepted.

6. We, therefore, direct that

whenever any transfer is ordered not

by the departments, but on the

recommendations of a Minister or

MLA, then before ordering the

transfer, views of the administrative

department must be ascertained. Only

after ascertaining the views of the

administrative department, the

transfer may be ordered if approved

by the administrative departments.

7. No transfer should be ordered at

the behest of party workers or others

who have no connection either with

the legislature or the executive.

These persons have no right to

recommend that an employee should

be posted at a particular place. In

case they want to complain about the

functioning of the employee then the

complaint must be made to the

Minister In charge and/or the Head of

the Department. Only after the

complaint is verified should action be

taken. We, however, reiterate that no

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High Court of H.P.transfer should be made at the behest

of party workers.”

5. In the case in hand, as noticed supra,

no doubt, the Chief Minister, Himachal Pradesh has

approved the transfer of respondent No.4 either

vice Daleep Singh, the petitioner or one Smt.

Suman Kumari, JBT posted in Government Primary

School Chalauhati and the matter was forwarded to

the 2

nd

respondent. Nothing is there in the record

produced before us that in the office of 2

nd

respondent, the matter was examined to ascertain

the justification of the transfer of the petitioner

approved by an elected representative. Again

nothing is there on record to show that the office of

respondent No. 2 has examined the matter and the

said respondent recorded its satisfaction qua the

desirability of the transfer of the petitioner in the

interest of administration or larger public interest.

Therefore, obviously, respondent No.2 has issued

the order of transfer merely on the D.O. note of the

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High Court of H.P.Chief Minister which is not legally permissible as the

law laid down by this Court deprecate such practice

of transfer of an employee.

6. Admittedly, the petitioner was

transferred and posted at the present place of his

posting in the month of August 2016. Now, he has

again been transferred to Government Primary

School, Trail, under the same Education Block i.e.

Aut vide order under challenge. What is the

distance between Government Primary School,

Hansu and Government Primary School, Trail,

nothing has come on record. The Administrative

Head i.e. respondent No.2 may transfer the

petitioner, however, strictly in accordance with law

and in the interest of Administration and not on the

basis of D.O. note alone and at the behest of

political executive.

7. The competent authority i.e. the 2

nd

respondent on receipt of approval for transfer of the

petitioner should have examined the same

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High Court of H.P.independently, uninfluenced by the

recommendation, if any, of the elected

representative and issued the order of transfer

thereafter. The issuance of order of transfer of the

petitioner by the 2

nd

respondent, therefore, is not in

the interest of administration or public interest and

rather colourable exercise of power. Being so, the

impugned order, in all fairness and in the ends of

justice, is not legally sustainable. The same, as

such, deserves to be quashed and set aside. A Co-

ordinate Bench of this Court in Ashok Kumar Attri

versus Himachal Pradesh Power Corporation

Limited, 2013 (3) Shim.LC 1594 , under similar

set of facts and circumstances has held as under:-

“6. Taking overall view of the matter,

therefore, we not only quash and set

aside the office order, dated 31

st

August,

2013, but also direct respondent No.1 to

reconsider the issue of posting of

petitioner and respondent No.3 afresh,

taking into account all aspects of the

matter and that decision should be

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High Court of H.P.taken in accordance with the extant

transfer policy and not under dictation

or influence of the D.O. letters received

form the office of the Chief Minister,

which has no value and if that is taken

into account, it would be nothing short

of extraneous consideration by the

Appropriate Authority of respondent

No.1.”

8. In view of the legal principles settled

in the judgments cited supra, we are in agreement

with the submissions made by Mr. H.S. Rangra,

learned counsel representing the petitioner that

order of transfer, Annexure P-1 is not legally

sustainable.

9. For all the reasons hereinabove, this

petition succeeds and the same is accordingly

allowed. Consequently, the order under challenge in

this writ petition, Annexure P-1 is quashed and set

aside. We, however, leave it open to the

Competent Authority (respondent No.2), to transfer

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High Court of H.P.of the petitioner, if so required, strictly in

accordance with law and as per the Transfer Policy.

10. With the aforesaid observations, the

writ petition stands disposed of, so also the pending

application(s), if any.

(L. Narayana Swamy)

Chief Justice

(Dharam Chand Chaudhary)

Judge.

October 14, 2019 (ps)

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