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2004 DIGILAW 191 (HP)

AMARJIT SINGH v. STATE OF H. P.

2004-08-11

NARINDER SINGH THAKUR, S.S.NEGI

body2004
ORDER Honble Mr. Narinder Thakur, Vice Chairman - This original application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985. 2. The applicant is aggrieved by the impugned order dated 23.2:2004 whereby the.-transfer orders effected vide orders dated 23.1.2004 transferring the applicant from Gahlian to Dhalot has been cancelled in wrong, illegal and arbitrary manner. The applicant had joined at Dhalot and is performing, his duties in Patwar Circle, Dhalot therefore, cancellation of the transfer after a short stay of a month is not in consonance with law. 3. Reply has been filed, by the respondents 1 to 3 as well as respondent No. 4. " 4. In the reply filed by respondents No, 1 to 3 it has been stated that the order dated 23,2.2004 passed by the replying respondent No. 2 is legal and justified and has been passed in the interest of the applicant. The applicant has adopted the precedent as his inherent right to assail every order passed by the replying respondent for the transfer of the applicant as has been held by this Tribunal in original application No. 1638/03 also filed by the applicant. The respondent submits that it is well settled position of law that who should be transferred where, is a matter for the appropriate authority to decide. The transfer policy of the Government is a guiding factor of the nature of executive instructions of the Government. This does not confer any enforceable right on the applicant. The transfer of an employee is a matter of administrative discretion and the administrative guidelines do not confer any legal or vested right to the Government employee challenging his transfer. This order dated 24.9.2003 passed by the Tribunal in original application No. 1638/03 also derives its sanctity by super-adding the seal of the Honble High Court of Himachal Pradesh in it. The order dated 24.9.2003 passed in original application No. 1638/03 was assailed by the present applicant before Honble High Court by filing CWP No. 955/03 wherein the Honble High Court has held that because to interference was called for, the Tribunal has rightly dismissed the original application assailing the impugned transfer order. 5. It is further stated by the respondents that in the first instance the applicant was transferred from Patwar Circle Sastar to Patwar Circle, Kharwar vide order dated 20.11.2002". 5. It is further stated by the respondents that in the first instance the applicant was transferred from Patwar Circle Sastar to Patwar Circle, Kharwar vide order dated 20.11.2002". The applicant approached this Tribunal by filing the original application No. 3187/02. As per directions of this Tribunal this original application No. 3187/02 was treated as representation and keeping in view the interest of the applicant he was adjusted at Patwar Circle Dugha vide order dated 20.5.2003. Bui the applicant did not join at Patwar Circle, Dugha as such being under transfer he was transferred to Patwar Circle Gahlian vide order dated 26.6.2003. The order dated 26.6.2003 was challenged by the applicant by filing original application No. 1638 of 2003 which was dismissed by the Tribunal vide order dated 24.9.2003. It is further stated by the respondents that the distance between Patwar Circle Gahlian and native village of the applicant is about 8 kms. The reason given by the respondents for cancellation of his transfer order is that the applicant was adjusted at a place located on roading and easily approachable to him. Nothing illegal and against the interest of the applicant was done as such the article 14 and 16 of the Constitution of India have been invoked for no reasons and cause. 6. Reply has also been filed by the respondent No. 4 and it has been stated that the applicant was temporarily adjusted at Dhalot due to study of the children. Now the examinations of the children are over and the applicant has been rightly sent back to Gahlian. 7. Rejoinder has been filed by the applicant. It has been stated-by the applicant in his rejoinder that the applicant has not been transferred to a place which is nearer to his home. On the contrary, it is stated that the transfer of the applicant which was effected taking into consideration his crippledness, has been superseded by wrong order. The distance between Hamirpur to Gahlian is 28 Kms. The applicant who was posted and joined at his new place of posting should not have been disturbed after his joining at Dhalot. It is further stated that the Tehsil office of Dhalot is situated at a distance of 2-3 kms. and the Patwari is required to visit the Tehsil Office very frequently. The applicant who was posted and joined at his new place of posting should not have been disturbed after his joining at Dhalot. It is further stated that the Tehsil office of Dhalot is situated at a distance of 2-3 kms. and the Patwari is required to visit the Tehsil Office very frequently. The applicant who is resident of Bhakarti is in a position to reach his Office at Dhalot which is at a distance of 12 kms and is on road side. The distance between Bhakarti too Gehlian is 20 kms. and Tehsil office of Gehlian is situated at Nadaun which is at a distance of more than 35 kms. 8. We have heard the learned Counsel for the applicant, learned Deputy Advocate General for respondents No. 1 to 3 and learned Counsel for respondent No. 4. We have also gone through their pleadings carefully. We have also perused the record. 9. It is admitted position from the pleadings that earlier the applicant filed original application before this Honble Tribunal which was rejected by this Tribunal. The applicant filed a CWP No. 955/2003 against the orders passed by this Tribunal. But the High Court of Himachal Pradesh dismissed the CWP No. 955/03 on the ground that no interference was called for or warranted, the Tribunal has rightly dismissed the original application of the applicant. The earlier original application was dismissed after the applicant had joined at Gahlian. On joining at Gahlian the applicant approached the appropriate authority for his adjustment at Dhalot. The representation of the applicant was considered and vide order dated 23.1.2004 the applicant was transferred to Dhalot and he joined there on the same date. Thereafter vide Annexure A-14 dated 23.3.2004 the transfer order of the applicant to Dhalot were cancelled by the respondents within a short span of one month. 10. It is admitted position from the pleadings that it was well within the knowledge of the respondents that the applicant is handicapped and cripple and it was also in the knowledge of the respondents that the earlier original application was dismissed by this Tribunal and the Writ Petition filed by the applicant against the orders of this Tribunal was also dismissed and the applicant was adjusted at Dhalot on his request keeping in view his crippled ness and handicappedness. Once the respondents have acceded to the request of the applicant for his adjustment at Dhalot there was no question of cancelling the same within a short span of one month. 11. As per rejoinder the Tehsil Office Dhalot is situated at a distance of 2-3 kms. The applicant who is resident of Bhakarti is in a position to reach his Office at Dhalout which is at a distance of 12 kms and is on road side. The distance from Bhakarti to Gehlian is 20 kms. and Tehsil of Gahlian is at Naduan which is at a distance of 35 kms. that is why the applicant was adjusted at Dhalot by the competent authority. 12. The learned Deputy Advocate General as also the learned Counsel for the respondent No. 4 has argued that transfer is an incidence of service and an employee can be transferred anywhere in the exigency of service and the Court or Tribunal should not ordinarily interfere in such matters until and unless the orders are passed in a mala fide manner or under the colourable exercise of powers. These contention of the learned Counsel for the respondents are not disputed. However in the instant case the applicant was adjusted on his own request keeping in view his crippledness but within a short span of one month the same was cancelled. 13. The learned Counsel for the applicant has cited the case law of Indu Mahaja v. State of H.P. and another, OA No. 1726/99 which has been decided by a Division of this Tribunal on 28.10.1999 in which it has been observed that once the applicant has been adjusted at his own request at a particular place, he cannot be transferred back after a short stay. In the instant case, the applicant was adjusted at Dhalot on his request but after a short span on one month his transfer orders were canceled without any rhyme or reason. This Tribunal is bound by the decision of the Division Bench referred to above. 14. In view of this position we feel that the present transfer has not been done in public interest and in the exigency of service and the applicant was adjusted at Dhalot on his request in view of his handicappendness, accordingly the original application is allowed. The impugned Annexure A-14 dated 23.2.2004 is quashed and set aside. 14. In view of this position we feel that the present transfer has not been done in public interest and in the exigency of service and the applicant was adjusted at Dhalot on his request in view of his handicappendness, accordingly the original application is allowed. The impugned Annexure A-14 dated 23.2.2004 is quashed and set aside. The respondents are directed to allow the applicant to continue to work at the present place of posting till the completion of his normal tenure as per policy. 15. The original applications stands finally disposed of in the light of above.