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2009 DIGILAW 799 (HP)

SANT RAM PANT v. STATE OF H. P.

2009-09-17

DEEPAK GUPTA, SURINDER SINGH

body2009
JUDGMENT Deepak Gupta, J-By means of this writ petition, the petitioner has challenged the order dated 1.1.2009 whereby the transfer order of respondent No.3 has been modified and he has been adjusted at Hamirpur vice petitioner and the petitioner has been posted to Mehla (Chamba). 2. Briefly stated the facts of the case are that the petitioner as well as the respondent No.3 are employees of the State of Himachal Pradesh and they are both working as Agricultural Development Officers in the State of Himachal Pradesh. The respondent No.3 was promoted as Agricultural Development Officer and on promotion was posted to Mehla (Chamba). It appears that respondent No.3 was not happy with this transfer and approached the office of the Hon’ble Chief Minister to the State of Himachal Pradesh. Consequently, the order of his transfer was cancelled vide impugned order dated 1.1.2009 and he was ordered to be adjusted in the Quality Control Laboratory, Hamirpur against which post the petitioner was working. Resultantly, the petitioner was transferred from ADO, Quality Control Laboratory, Hamipur to Development Block, Mehla (Chamba). 3. The case of the petitioner basically is that he has been transferred only to accommodate the respondent No.3. Whereas the petitioner has served in the tribal area of Nichar, respondent No.3 has never served in a tribal area and has still been adjusted at Hamirpur. 4. On 22nd June, 2009 we had directed the State to produce the record to show as to what necessitated the cancellation of the transfer of respondent No.3 to Mehla and his transfer to Hamipur. On 27th June, 2009 some record was produced and we had passed the following order:- “The only record produced beforeus to justify the cancellation of transfer of respondent No.3 is somenote sent by the Deputy Secretary to Hon’ble the Chief Minister on 29th December, 2008. There is nothing onrecord to show that on what basis this note was issued. The State is directed to produce the entire recordin this regard. List on 6th August,2009. The respondent No.3 may engagea counsel and may file reply on orbefore the said date.” 5. Thereafter, the entire record has been produced. We have heard Sh.Ajay Sharma, learned counsel for the petitioner, Sh.R.M.Bisht, learned Deputy Advocate General for the State and Sh.Bipin Negi, learned counsel for the respondent No.3. 6. List on 6th August,2009. The respondent No.3 may engagea counsel and may file reply on orbefore the said date.” 5. Thereafter, the entire record has been produced. We have heard Sh.Ajay Sharma, learned counsel for the petitioner, Sh.R.M.Bisht, learned Deputy Advocate General for the State and Sh.Bipin Negi, learned counsel for the respondent No.3. 6. From the facts narrated above, it is apparent that respondent No.3 on his promotion was posted to Mehla (Chamba) vide order dated 19.12.2008. Thereafter, this order was cancelled by the impugned order dated 1.1.2009. Despite our two orders as quoted above, the only record produced by the State justifying the order dated 1.1.2009 is a note which has been issued by the Deputy Secretary to the Chief Minister addressed to the Principal Secretary (Agriculture) to the Government of Himachal Pradesh which reads as follows:- “Hon’ble Chief Minister has approved the following: Shri Ajay Kumar Chopra, ADO under orders of posting at Mehla, Distt.Chambamay be adjusted at Plant Fertilizer Quality Control Laboratory, Hamirpur against Shri Sant Ram without TTA/JT. Pr.Secretary (Agriculture) to the Govt. of Himachal Pradesh is requested totake necessary action accordingly. -sd-Deputy Secretary to the Chief Minister The Pr.Secretary (Agriculture) to theGovt. of Himachal Pradesh, H.P. Secretariat, Shimla 171 002.” 7. We had repeatedly asked the Government as to on what basis this note was issued. No written representation or any other communication has been produced before us justifying the issuance of such a note. 8. When transfers are made, an employee may be aggrieved by his transfer. An employee has a right to make a representation against such transfer. It is also the right of the employer, including the State, to look into the grievances of the employee and if the grievance made by the employee is found to be genuine, the State is well within its right to redress the grievance of the employee and cancel the order of transfer. However, the grounds for passing an order of cancellation within two weeks of the original order must be borne out from some material on the record. In the present case, despite two opportunities being given the State has not produced any representation made by the respondent No.3 or any other communication addressed to the office of the Hon’ble Chief Minister on behalf of the respondent No.3 which would justify the issuance of the note dated 1.1.2009. 9. In the present case, despite two opportunities being given the State has not produced any representation made by the respondent No.3 or any other communication addressed to the office of the Hon’ble Chief Minister on behalf of the respondent No.3 which would justify the issuance of the note dated 1.1.2009. 9. This Court is flooded with writ petition in which the employees challenge the orders of their transfer. Therefore, while disposing of CWP No.1105 of 2006 titled Sushila Sharma v. State of H.P & others decided on August 27, 2007 we had issued the following directions: “We, however, direct that a copy of this judgment be sent to the Chief Secretary to the Govt. of H.P., who shall ensure that a proper transfer policy is formulated to ensure that the transfers are made only on administrative grounds and not on anyother grounds. In the policy to be framed, it shall be ensured that all the employees are treated fairly and equally and every employee during his tenure of service serves in tribal/hard areas and also in remote/rural areas. When transfers are made, the administrative department shall ensure that the employees who have already served in tribal/hard areas as well as remote/rural areas are not again sentto these areas and there is a continuous process of change wherebyall the employees have a chance toserve in tribal/hard areas as well asremote/rural areas. In the policy soframed, it should also be ensured that the transfer orders are not cancelled without making reference to the administrative department to put-forthits views. In the policy, measures shall be provided to ensure that employees (obviously influential) who have managed to remain posted in the urban areas/cities are posted to rural/remote areas and hard/tribalareas in the transfer season when the transfers are made. The transfer policy should also ensure that people,who are posted in remote/rural areas,join their place of postings and donot manage to get their transfers cancelled on frivolous grounds as hashappened in the present case.” (emphasis supplied) 10. We had clearly directed that transfer orders should not be cancelled without making reference to the administrative department to put-forth its views. The reason for this direction was that many times just by giving a one-sided version an employee would manage to get his transfer cancelled by approaching the high-ups. This resulted in transfer of some other employee who did not enjoy similar clout. 11. The reason for this direction was that many times just by giving a one-sided version an employee would manage to get his transfer cancelled by approaching the high-ups. This resulted in transfer of some other employee who did not enjoy similar clout. 11. In the present case, there is no representation of respondent No.3 on record. He made no representation to his own Department. We are clearly of the view that if an employee is aggrieved by any action taken by the Department, his remedy is to approach the Department itself. The Conduct Rules clearly lay down that an employee can only make a representation to his own department that too by following the proper channel. He cannot directly approach the office of the Hon’ble Chief Minister or any other authority except his own administrative department. No employee has the right to approach a political representative for redressal of his grievances relating to his service conditions. This would amount to misconduct. Even if the decision with regard to the cancellation of transfer has to be taken at the level of the Hon’ble Chief Minister, the same should be taken after ascertaining the views of the administrative department. In Sushila Sharma’s case, we had clearly laid down that transfer orders should not be cancelled without making reference to the administrative department and giving it an opportunity to put-forth its views. This is necessary because the administrative department can then put-forth its view supported with reasons as to whether the order of transfer should be cancelled or not. Even if such guidelines have not been incorporated in the Policy we hereby direct that the said procedure should be followed in future. 12. We may clarify that the public representatives have a right to complain against the working of any public servant. Even when a public representative or political functionary makes some complaint against a public servant and requests that he be transferred then also the views of the administrative department concerned must be ascertained. We are also of the considered opinion that though a public representative can make a complaint against a particular employee, he cannot suggest the name of any particular employee who should be brought in his place. This is a matter for the administrative department to decide keeping in the view the administrative exigencies and public interest. 13. We are also of the considered opinion that though a public representative can make a complaint against a particular employee, he cannot suggest the name of any particular employee who should be brought in his place. This is a matter for the administrative department to decide keeping in the view the administrative exigencies and public interest. 13. In the present case, the respondents have failed to point out any reason for canceling the transfer order. The stand of the respondent is that it is the prerogative of the employer to pass an order of transfer in respect of an employee. Nobody questions such right of the employer. However, once an employer exercises his right and passes an order of transfer, it will be presumed that the said order has been passed in public interest and due to administrative exigencies. Therefore, if such an order is to be cancelled, reasons must be made out for canceling the transfer. These reasons may not be spelt out in the transfer order but must be apparent from the record. In the present case, the Department exercised its prerogative of transferring the employee when it passed the order on 19th December, 2008 while promoting respondent No.3 and posting him to Mehla in Chamba. If this transfer order was to be cancelled, there must be some reasons on record justifying the same on the grounds of “public interest” and “administrative exigencies”. The note quoted above does not make any reference to administrative exigency or public interest. There is no material whatsoever to show on what basis this note was issued. 14. As a consequence of the above discussion, we are constrained to hold that the note in question has emanated without any material on record. There is no material shown to us as to why the order dated 19.12.2009 was to be modified. Such an order is, therefore, illegal and is accordingly set aside. 15. We have seen from the record that the petitioner himself has spent more than four years at Hamirpur. His only grievance was that he has been transferred only to adjust the respondent No.3. We find this grievance genuine. His other grievance was that his son was studying in 10+2. By now, the exams for the said class are over. Since the petitioner has also completed four years at Hamirpur, the State shall be at liberty to transfer him from Hamirpur. We find this grievance genuine. His other grievance was that his son was studying in 10+2. By now, the exams for the said class are over. Since the petitioner has also completed four years at Hamirpur, the State shall be at liberty to transfer him from Hamirpur. But as far as the orders of respondent No.3 are concerned, the same shall be governed by the original order dated 19th December, 2008. 16. The writ petition is allowed in the aforesaid terms. No order as to costs. 17. The Registrar General is directed to send a copy of this judgment to the Chief Secretary to the Government of Himachal Pradesh for circulation amongst all administrative secretaries.