Research › Search › Judgment

Himachal Pradesh High Court · body

2011 DIGILAW 2146 (HP)

Sanjay Sharma v. State Of H. P.

2011-05-10

KURIAN JOSEPH, SANJAY KAROL

body2011
JUDGMENT : Sanjay Karol, J. Petitioner Sanjay Kumar, JBT, stands transferred from GPS Kuddi (SDR) to GPS Panjaili (SDR), vide office order dated 7.5.2011 issued by respondent No.4. Petitioner has assailed the same on the ground that even though there is a resolution passed by the School Management Committee, recommending his continuance in school, respondents, by ignoring the same, have still transferred him from there. 2. It is not in dispute that petitioner has otherwise completed his normal tenure at GPS Kuddi (SDR). It is a well settled proposition of law that no employee has a vested right for continuing at one place. Transfer is an incident of service and it is for the employer to see how best and where the services of the employee are to be utilised. Except in the established/proven case of malafides or arbitrariness, scope of interference by the Courts in such like matters is limited. 3. Reliance is placed on Clause 4.11 of the Instructions/guidelines issued by the State, with regard to constitution of School Management Committees, vide Notification dated 6.3.2010 issued by virtue of the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the Act). It provides that if the general body of school management committee in the last meeting of the academic session, while appreciating the special contribution of some teacher towards the development of school and students, recommends that such teacher may not be transferred and if a resolution that effect is forwarded to the Deputy Director, Primary Education, such teacher be not transferred from the said school in the next academic session. 4. In Narendra Kumar Maheshwari v. Union of India and others, 1990 (Supp) SCC 440 the Court has held as under:- "In a case of the present type, however, the guidelines operate in a totally different field. The guidelines do not affect or regulate the right of any person other than the company applying for consent. The manner of application of these guidelines, whether strict or lax, does not either directly or indirectly, affect the rights or potential rights of any others or deprive them, directly or indirectly, of any advantages or benefits to which they were or would have been entitled. The manner of application of these guidelines, whether strict or lax, does not either directly or indirectly, affect the rights or potential rights of any others or deprive them, directly or indirectly, of any advantages or benefits to which they were or would have been entitled. In this context, there is only a very limited scope for judicial review on the ground that the guidelines have not been followed or have been deviated from. Any member of the public can perhaps claim that such of the guidelines as impose controls intended to safeguard the interests of members of the public investing in such public issues should be strictly enforced and not departed from; departure therefrom will take away the protection provided to them. The scope for such challenge will necessarily be very narrow and restricted and will depend to a considerable extent on the nature and extent of the deviation. A Court, however, would be reluctant to interfere simply because one or more of the guidelines have not been adhered to even where there are substantial deviations, unless such deviations are, by nature and extent such as to prejudice the interests of the public which it is their avowed object to protect. Per contra, the Court would be inclined to perhaps overlook or ignore such deviations, if the object of the statute or public interest warrant, justify or necessitate such deviations in a particular case. This is because guidelines, by their very nature, do not fall into the category of legislation, direct, subordinate or ancillary. They have only an advisory role to play and non-adherence to or deviation from them is necessarily and implicitly permissible if the circumstances of any particular fact or law situation warrants the same. Judicial control takes over only where the deviation either involves arbitrariness or discrimination or is so fundamental as to undermine a basic public purpose which the guidelines and the statute under which they are issued are intended to achieve." 5. Narendra Kumar Maheshwari (supra) has been reiterated in State of Haryana v. Mahender Singh and others, (2007) 13 SCC 606 and New India Assurance Company Ltd. v. Nusli Neville Wadia and another, (2008) 3 SCC 279 . 6. The instructions do not confer any legally protected and judicially enforceable rights on the petitioner teacher. Narendra Kumar Maheshwari (supra) has been reiterated in State of Haryana v. Mahender Singh and others, (2007) 13 SCC 606 and New India Assurance Company Ltd. v. Nusli Neville Wadia and another, (2008) 3 SCC 279 . 6. The instructions do not confer any legally protected and judicially enforceable rights on the petitioner teacher. Hence, the order of transfer, otherwise in consonance with the transfer policy of the State, cannot be assailed on this ground alone. That the scope of interference by the High Court in the matter of transfer of an employee is very limited is now a well settled position. It is not the case of the petitioner that his transfer is otherwise based on extraneous considerations, out of malice, or is arbitrary. 7. Consequently, present petition devoid of any merit is dismissed.