Research › Search › Judgment

Himachal Pradesh High Court · body

2006 DIGILAW 376 (HP)

Dev Kumari v. State of H. P.

2006-11-28

M.R.VERMA

body2006
JUDGMENT M.R. Verma, Chairman 1. The applicant being aggrieved by office order Annexure A-1 transferring her from Shimla to Rampur has filed this original application seeking the relief that the Respondents may be directed to cancel the impugned order and that the order dated 9.3.2005 may be quashed and set aside. 2. Brief facts leading to the filing of this original application are that the applicant is working as Instructor, Cutting and Tailoring, Industrial Training Institute (W) Shimla and Respondent No. 4 was working as Instructor, Stenography (Hindi), but she was rendered surplus therefore, after training as Instructor, Cutting and Tailoring was ordered to join as such at Rampur. However, she preferred O.A. No. 2131/2005 which was ordered to be treated as a representation vide order Annexure R-3 dated 1.9.2005 passed by a Division Bench of this Tribunal. On consideration of such representation Respondent No. 2 adjusted Respondent No. 4 in Shimla and transferred the applicant to Rampur. Case of the applicant is that Respondent No. 4 was once transferred to Jubbal where she did not join and was again transferred to Rampur and she did not join there and being influential succeeded in securing the impugned order despite the fact that in the matter of stay both the applicant and Respondent No. 4 are similarly situate, but the applicant had three minor children and aged parents-in-law to lookafter and the transfer being in mid-session would result in suffering the children in their studies. Therefore, the transfer is highly arbitrary, void, illegal, capricious, unconstitutional and violative of the principle of natural justice. 3. The Respondents contested the claim of the applicant. Respondents No. 1 to 3 in their reply have averred that it is prerogative of the Government to transfer its employees from one place to another in the public interest and the applicant having completed her tenure at Shimla cannot as of right claim her posting at the same station whereas Respondent No. 4 had been adjusted in Shimla on sympathetic consideration that her retirement is to take place on 31.3.2007. It is further claimed that Respondent No. 4 has been adjusted at ITI Shimla on account of the orders passed by Respondent No. 2 in 'pursuance with' the directions/orders passed by this Tribunal in O.A. No. 2131/2005 filed by Respondent No. 4 and thus the claim has been denied. 4. It is further claimed that Respondent No. 4 has been adjusted at ITI Shimla on account of the orders passed by Respondent No. 2 in 'pursuance with' the directions/orders passed by this Tribunal in O.A. No. 2131/2005 filed by Respondent No. 4 and thus the claim has been denied. 4. Respondent No. 4 in her separate reply had justified her adjustment at Shimla in view of her approaching the age of superannuation within one year 3 months and the policy of Government in such cases and on the legal principle that an employee is bound to serve at any place in the State as per the exigencies of the administration. The personal problems as averred by the applicant in her original application have been denied and it is claimed that the impugned order is not illegal, arbitrary or void. 5. I have heard the learned Counsel for the applicant and Respondent No. 4 and the learned Deputy Advocate General for the Respondents No. 1 to 3. 6. It may be pointed out at the very outset that the defence taken by the Respondents No. 1 to 3 that Respondent No. 2 while passing the impugned order acted pursuant to the order passed by this Tribunal is not wholly correct. This tribunal in the order Annexure R-3 has not observed that Respondent No. 4 (Applicant therein) must be adjusted at a station of her choice nor could such an order be passed for the simple reason that no legal right vests in an employee to have him/her adjusted/posted at a place of his/her choice. From the averments in the reply of Respondents 1 to 3 it can be inferred that the Respondent No. 2 was to some extent influenced in his decision by the assumption that as per the order Annexure R-3 Respondent No. 4 was to be considered for being posted to one of the places of her choice which in fact is not specifically so directed in Annexure R-3. Had the Respondent No. 2 not been so influenced there was no occasion to the Respondents 1 to 3 to plead that Respondent No. 2 passed the impugned order in pursuance to the directions/order of this Tribunal. 7. Had the Respondent No. 2 not been so influenced there was no occasion to the Respondents 1 to 3 to plead that Respondent No. 2 passed the impugned order in pursuance to the directions/order of this Tribunal. 7. The common defence of the Respondents that the Government has the power to transfer its employee to any station in the public interest or in the exigencies of service in principle is perfectly lawful. But in the facts and circumstances of the case Respondents seem to have lost sight of the fact that this principle governing transfer was and is applicable not only to the applicant but also to Respondent No. 4 who was under transfer to Rampur undisputably in the public interest but assailed such transfer and the Respondent No. 2 in the face of the order Annexure R-3 and the fact that Respondent No. 4 was to retire after about 1 year and three months modified her transfer order and adjusted her in Shimla contrary to the principle relied by the Respondents to justify the impugned order. Even as per the legal stand of the Respondents as stated hereinabove, this act of Respondents at the most can be said to be based on compassion because Respondent No. 4 also has no vested right to claim her posting to a station of her choice particularly when she stood transferred to Rampur presumably in the public interest. 8. In case for the stated reasons Respondent No. 4 deserved to be adjusted on compassionate considerations by the employer, it has to grant relief on such ground after coming to a conclusions that thereby he is not depriving the other employee of a suitable posting as per his problems amounting to compassionate grounds to allow him to continue at the same place. It is this aspect of the matter which was ignored by Respondent No. 2 who passed the impugned order without caring to the alleged problems of the applicant. Looking to the problems averred by applicant in this original application she also has a case to seek at least consideration, if not the benevolence of the employer to assess the gravity of the problems faced by her and after comparing them to those of Respondent No. 4 to come to a just conclusion. Looking to the problems averred by applicant in this original application she also has a case to seek at least consideration, if not the benevolence of the employer to assess the gravity of the problems faced by her and after comparing them to those of Respondent No. 4 to come to a just conclusion. If it is not done as has not been done, the only conclusion will be that the applicant has been discriminated against, therefore, the impugned order cannot be sustained. 9. As a result, order Annexure A-1 is set aside and Respondent No. 2 is directed to re-consider the representation (as O.A. No. 2131/2005 filed by Respondent No. 4 was treated) after giving opportunity of being heard to both Respondent No. 4 and the applicant on the pleas respectively raised by them to substantiate their rival claims and for that matter, the applicant will present a copy of this original application to Respondent No. 2 within seven days of the passing of this order and such copy be treated as her counter representation to the representation of Respondent No.4 as O.A. 2131/2005 was treated. This original application is disposed of in terms of the above orders with no order as to costs.