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2012 DIGILAW 3 (HP)

Sanjeev Kumar v. State of Himachal Pradesh

2012-01-02

SURINDER SINGH

body2012
JUDGEMENT Surinder Singh, J (oral): This judgment shall dispose of the above titled petitions whereby the petitioners have challenged their orders of transfer in the mid-sessions and short stay of three months. 2. Petitioner Sanjeev Kumar is posted as Superintendent Grade-II w.e.f. 23.7.2011 on promotion in GSSS Lahru, District Kangra and Piar Chand is Senior Assistant in GSSS Bir Baghera, District Hamirpur w.e.f. 23-7-2011. 3. Both the petitioners are aggrieved by Office Order Annexure P-2 dated 19.2.2011 whereby Sanjeev Kumar was transferred to GSSS Kuimajhawar, District Bilaspur and Piar chand to GSSS Saloa, District Bilaspur, against vacancies. 4. Vide order dated 1.11.2011, Division Bench No.II, of this Court directed that the petitioners shall not be compelled to relieve from their present places of posting till next date of hearing, however, vide order dated 25.11.2011 passed by the Principal Bench of this Court, it was clarified that in case the vacancies from where the petitioners have been transferred are still available subject to the result of the writ petitions, the petitioners shall be permitted to rejoin duties and continue in service till the disposal of the writ petitions. 5. Learned counsel for the petitioners stated at bar that both the petitioners are serving at the same places from where they were ordered to be transferred. 6. This Court directed the respondents to produce the record of the transfer of the petitioners, which has been produced, perused and returned. 7. Heard learned counsel for the parties and went through the record. 8. Admittedly, the transfer is not a punishment and if transfer is inflicted as a means of punishment, then the whole purpose of making transfers in the public interest is set at naught. An employee who is rude or inefficient at one station will not become polite or efficient at another station. Thus, the transfer does not serve any purpose. If the allegations of the public representatives made in the complaints against the Government servants are found to be correct, then disciplinary action should be taken against such Government employees. 9. If a Government servant wants transfer to a particular place, cannot urge that he should continue at such a place as long as he desires. If the allegations of the public representatives made in the complaints against the Government servants are found to be correct, then disciplinary action should be taken against such Government employees. 9. If a Government servant wants transfer to a particular place, cannot urge that he should continue at such a place as long as he desires. Transfer is an exigency of service, unless it is shown to be a mala fide or violative of any statutory provisions such as an Act or Rule or passed by an authority not competent to do so, it should not be normally interfered with by the High Court. 10. In fact, the public representatives have a right to complain against the working of any public servant. Even if the public representatives or the public functionaries are making the complaint against the public servant requesting that he be transferred,the administrativedepartment concernedmust beascertained about this complaint andit is onlyfor the administrative department to take decision keeping in view the administrative exigency and in public interest, subject to the rules of business of the Government regarding condoning delay etc. 11. Certainly, in a democratic set-up, our elected representatives under the constitution are to work in the legislature and not as administrators. They cannot start interfering in the administration or the working of the Executive. This has already resulted in Government servants rushing to please the political masters at the cost of doing their duties, which demoralizes the officers who are in charge of the administration of the department. It is they who are the best judges to decide how the department has to be administered and which employee should be transferred to which place. The politicians cannot don the role of the administrators. The earlier such inherently illegal and improper practices are put to an end, the better it would be for the smooth functioning of the administration of the State was observed by this Court in Pratap Singh Chauhan vs. State of H.P.and Ors. [2011 LAB.I.C. 4257] while taking note of couple of judgments passed by the Apex Court. 12. In Sant Ram Pant vs. State of H.P. and others [ 2009 (3) Shim.L.C. 206] the Division Bench of this Court observed that when the transfers are made an employee may be aggrieved by his transfer. An employee has a right to make a representation against such transfer. 12. In Sant Ram Pant vs. State of H.P. and others [ 2009 (3) Shim.L.C. 206] the Division Bench of this Court observed that when the 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 employees 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, even the grounds for passing an order of cancellation of the original order must be borne out from some material on the record. 13. In the instant cases, the respondents have produced the record of the transfer of the petitioners. The only record produced by the respondents justifying the orders of transfer is the D.O. Note No .Secy/CM- E0302/200 7- D EP-C-309623, dated 18th October, 2011 of the Hon’ble the Chief Minister approving the following:- “1. Shri Piar Chand, Sr. Asstt. May be transferred from GSSS Bir Baghera (Hamirpur) to GSSS Saloa, Distt. Bilaspur against vacancy, in public interest. 2. Shri Sanjeev Thakur, Supdt. Gr-II may be transferred from GSSS Lahru (Kangra) to GSSS Kuimajhawar, Bilaspur against vacancy, in public interest. Director of Higher Education, Himachal Pradesh, Shimla-1, is requested to take necessary action accordingly. Sd/- Additional Secretary to the Chief Minister.” 14. Learned Deputy Advocate General was particularly asked on what basis this note was issued. He could not give any satisfactory answer, rather stated that this is the only record available with respect to the transfer of the petitioners. 15. The perusal of this record shows that to note referred was received in the office of respondent- Director on 19.10.2011. The dealing hand simply highlighted the stations against each of the petitioners where they remained posted with effect from their initial date of posting. Thereafter, the Superintendent of the Directorate placed the matter before the Director (Higher Education) as it is, where upon he appended only his signatures in approval thereof which culminated into the office order Annexure P-2 under challenge. 16. In both the petitions aforesaid, the respondents have failed to point out any reason for the transfers of the petitioners within a short span of three months. 16. In both the petitions aforesaid, the respondents have failed to point out any reason for the transfers of the petitioners within a short span of three months. Simply saying that it is a prerogative of the employer to pass such an order in the public interest, cannot justify for a transfer of an employee in such a manner. 17. Thus, for the aforesaid reasons and as a consequence thereof, I am constrained to hold that the transfer order quoted above is emanated without any material on record, therefore, the order Annexure P-2 passed in both the petitions is indefensible hence set-aside. However, it is made clear that the respondents are at liberty to transfer the petitioners, keeping in view the transfer policy and the exigency of the service after properly dealing the cases of each of the petitioners on the administrative file of the respondents at the appropriate level in accordance with law. 18. With these directions, both the petitions stand disposed of, so also the pending application(s), if any and interim order dated 25.11.2011 is vacated.