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Himachal Pradesh High Court · body

2007 DIGILAW 316 (HP)

DR. D. N. GAUTAM v. STATE OF H. P.

2007-07-26

M.R.VERMA

body2007
JUDGMENT M.R. Verma, J. Chairman.—The applicant herein has prayed for quashing and setting aside the impugned transfer order Annexure-A/1 dated July 29, 2005 with directions to the respondents 1 to 3 to allow the applicant to continue to work at the present place i.e. Government Post Graduate College Kullu, Himachal Pradesh. 2. The case of the applicant in brief is that presently he is posted as Lecturer Hindi in Govt. Post Graduate College Kullu. In the year 1996 he underwent training course in NCC Army Wing at Officers Training School Kampti after due selection and permission granted by the Education Department of Himachal Pradesh and presently is discharging his duties as NCC Officer Army Wing in the aforesaid College. It is further case of the applicant that as per the contents of the letter Annexure-A/ 2 from the Director General, NCC addressed to the Secretaries of the States. Union Territories, the guidelines/instructions qua adopting certain procedure while effecting the transfers of Associate NCC Officer have been issued requiring consultation qua transfers of such Associate NCC Officers with directorate of NCC Group Headquarter and no Associate NCC Officer should be transferred to a non NCC College as the contrary would render him non functional which will adversely affect the smooth functioning of the NCC. However, the applicant has been transferred vide Annexure-A/1 to a College in Chamba where the duties of Associate NCC Officer are discharged by another Officer and no person trained in the discharge of such duties has been posted in place of the applicants which will result in bringing NCC activities in the Government Post Graduate College Kullu to a grinding halt, thus the impugned transfer apparently is contrary to the instructions/guidelines referred to above. It is also the case of the applicant that impugned transfer order is solely with a view to adjust respondent No. 4 and not in public interest, therefore, is unsustainable in the eyes of law, illegal, unfair, unjust and unconstitutional being contrary to the transfer policy and in infraction of the policy, hence this original application. 3. The respondents resisted the claim of the applicant. 3. The respondents resisted the claim of the applicant. Respondent No. 4 in her separate reply has claimed that the original application is not maintainable as the applicant has no cause of action whereas she has already joined pursuant to the impugned transfer order on August 4, 2005 which fact the applicant has not disclosed in the original application filed on August 9 and a misleading affidavit dated August 8, 2005 had been filed with the application. On merits it has been claimed that the orders of transfer passed by competent authority qua a government servant unless violative of instructions or orders should not be interfered with by the Courts and there being no violation of any law/ instructions in directing the impugned transfer, the original application deserves to be dismissed. 4. The respondents 1 to 3 in their separate reply have averred that the applicant had completed a tenure of more than 9 years in Government Post Graduate College Kullu at the time of passing the impugned transfer order. There is no restriction of Government to transfer Lecturer involved in the NCC activities, therefore, no illegality or irregularity has been committed by the respondents in transferring the applicant and the averments to the contrary in the application are without any substance. It is further claimed that applicant has been appointed as Lecturer in Hindi in College Cadre and his primary duty is to teach the children. It was made clear in his appointment order that he can be posted anywhere in the State. The NCC activities are the secondary duties and the transfer cannot be avoided due to the secondary activities associated with the job. The Annexure- A/2 only provides that NCC Officers due for transfer should preferably be posted in such institution where NCC coverage is available. The condition evidently is not binding or mandatory but only speaks of preference. The instructions in Annexure-A/3 are not applicable in the case of Lecturer College Cadre as the Director Education is not their transferring authority. It is reiterated in the reply that since the applicant has completed more than 10 years of service in Kullu, therefore, he is liable to be transferred. 5. The applicant filed rejoinder to the reply filed by respondent No. 4 denying the ground of defence therein and re-affirming the claim as in the original application. 6. It is reiterated in the reply that since the applicant has completed more than 10 years of service in Kullu, therefore, he is liable to be transferred. 5. The applicant filed rejoinder to the reply filed by respondent No. 4 denying the ground of defence therein and re-affirming the claim as in the original application. 6. I have heard the learned Counsel for the applicant, learned Deputy Advocate General for respondents 1 to 3 and learned Counsel for respondent No. 4. 7. The impugned transfer order Annexure-A/1 purports to have been issued "in public interest". In case a transfer order has been passed by the competent authority in public interest and is devoid of any arbitrariness or mala fides and is not violative of any legal right of the person thereby transferred it can never be held to be unsustainable in view of the powers of the employer to post its employees at a place it deems fit and proper in public interest. However, in the case in hand the question arise whether the use of expression "in public interest" in the impugned transfer order is correctly made or is a camouflage to protect colorable exercise of transfer. 8. A close scrutiny of the transfer order Annexure-A/1 reveals that respondent No. 4 has thereby been transferred without TTA. The respondents have not explained as to why respondent No. 4 has been transferred without TTA therefore the only lawful inference is that she has been transferred without TTA because the transfer has been ordered on her request. Thus the impugned transfer has been ordered in the interest of respondent No. 4 and not in the public interest. The respondents therefore, cannot be permitted to justify the impugned transfer on the ground that it has been ordered in public interest. 9. In view of the above conclusions the submission for respondents that the impugned transfer cannot be interfered with because it in the public interest is unsustainable. 10. It was contended for the applicant that he has been transferred to a place where associate NCC Officer is available and his substitute has not been provided at Kullu none will be available there to impart NCC Training. 10. It was contended for the applicant that he has been transferred to a place where associate NCC Officer is available and his substitute has not been provided at Kullu none will be available there to impart NCC Training. Even if so, such a situation is to be sorted out by the Government itself by making appropriate arrangement it should keep in view this aspect though it is not necessary that such arrangement should be made by them, simultaneously with the transfer order of the person who may be Associated NCC Officer nor holding of such a status by an Officer will give him a right to continue to serve in the same College for decades together as has been claimed by the applicant in the relief clause that direction should be given to the respondents to allow him to continue in Government Post Graduate College Kullu. Hence this contention is of no help to the applicant. 11. However, in view of the findings recorded hereinabove that the impugned transfer is not in public interest, it cannot be sustained. 12. As a result the impugned transfer order Annexure-A/1 is quashed and set aside. However, the relief that respondents be directed to allow the applicant to work at the present place i.e. Government Post Graduate College Kullu is declined. Keeping in view his stay at the present place of posting, the respondents will be at liberty to transfer the applicant at any time hereafter, if so required in public interest or exigency of service. This original application is disposed of in terms of above orders leaving the parties to bear their own costs. Application allowed.