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2012 DIGILAW 422 (HP)

Madan Singh Chandel v. State Of Himachal Pradesh

2012-08-08

DHARAM CHAND CHAUDHARY

body2012
JUDGMENT : Dharam Chand Chaudhary, J. The challenge herein is to the order dated 30.3.2012 Annexure P-8, whereby the earlier order dated 14.3.2012 Annexure P-1, qua the transfer of the petitioner from Government Senior Secondary School, Barmana (Bilaspur) to Government Senior Secondary School (Boys) Bilaspur, was cancelled and the 3rd respondent on his transfer from Government Senior Secondary School, Mahasu (Shimla) was adjusted in Government Senior Secondary School (Boys), Bilaspur. The petitioner being placed in permanent low medical category, while employed as a Havildar in the Indian Army, was declared unfit for further retention in military service and as such was discharged from service under the provisions of Army Rule 13(3) vide order Annexure P-3, after being served with show cause notice Annexure P-2. Medical Certificates Annexures P-4 and P-5 disclose that he is an old patient of compression fracture L-1 with lumber spondylosis and advised not to travel in public transport and also long distances. Besides, he needs regular check-up. His wife is also suffering from hearing disability to the extent of 85% as is evident from medical certificate Annexure P-7. 2. It appears that in view of his own medical history and that of his wife, the request he made to the competent authority for his transfer to GSSS (Boys) Bilaspur against a vacancy likely to be caused on 31.3.2012, consequent upon the retirement of the incumbent posted as Principal in the said school, was acceded to and the order Annexure P-1 came to be issued. However, before his joining duties in the said school on 1.4.2012 pursuant to order Annexure P-1, impugned order Annexure P-8 came to be issued on 30.3.2012, whereby while cancelling the order of his transfer Annexure P-1, the 3rd respondent was transferred and posted in GSSS (Boys), Bilaspur. 3. The grouse against the impugned order Annexure P-8, brought to this Court in the present writ petition, is that the order of transfer of the petitioner to GSSS (Boys) Bilaspur, issued earlier purely taking into consideration his own ill health and that of his wife, has been erroneously cancelled merely to accommodate the 3rd respondent, who on his promotion, was transferred to GSSS, Mahasu (Shimla), only 5-6 months ago. It is further pointed out that the present is a case of malafide exercise of power as the transfer of the 3rd respondent to Bilaspur is neither in the public interest nor in the exigency of service and rather contrary to the transfer policy. According to the petitioner, the impugned order of transfer has been issued with malafide intention in the evening of 30th March, 2012, so that the petitioner may not approach this Court to obtain the stay order as the next day being Saturday was a non-working day. 4. In reply, the respondents have furnished the service particulars of both, the petitioner and the 3rd respondent and raised the following plea by way of preliminary objections, in their defence: That it is respectfully submitted that the petitioner was transferred from GSSS Barmana, Bilaspur to GSSS Bilaspur (Boys), on request vide Notification dated 14.3.2012 (annexed with CWP as Annexure P-1) with the condition that he will join there on or after 1.4.2012. In the mean time another request of Sh. Kuldeep Chand Principal, GSSS Mahasu was received to post him at GSSS Bilaspur (Boys) who also hails from Bilaspur District. The matter was taken up with the authorities and competent authority accorded approval to post him at GSSS Bilaspur (Boys) and the petitioner was directed to remain in GSSS Barmana, District Bilaspur. The distance between GSSS Barmana and GSSS Bilaspur (Boys) is about 15 km only. The petitioner as well as the respondent No. 3 were accommodated/posted in their home district Bilaspur nearer to their native place. The respondent No. 3 has joined in GSSS Bilaspur (Boys) on 2.4.2012. The previous postings of the petitioner are as under: Sr. No. Name of the institution 1. GSSS Talai, Distt. Bilaspur 2. GSSS Ghumarwin, Bilaspur 3. GSSS Bilaspur (Girls) 4. GSSS Soldha, Bilaspur 5. GSSS Barmana, Bilaspur The previous posting of respondent No. 3 is as under: Sr. No. Name of the institution 1. GSSS, Rampur (Shimla) 2. GSSS, Bilaspur 3. GSSS, Barmana, Bilaspur 4. GSSS Auhar, Bilaspur 5. GSSS Ghumarwin, Bilaspur 6. GSSS Mahasu, Shimla. The above mentioned tabular statement depicts that the petitioner mostly remained posted in Bilaspur District which is his home district in or around 25 km. He never served tribal area during his service career. GSSS, Rampur (Shimla) 2. GSSS, Bilaspur 3. GSSS, Barmana, Bilaspur 4. GSSS Auhar, Bilaspur 5. GSSS Ghumarwin, Bilaspur 6. GSSS Mahasu, Shimla. The above mentioned tabular statement depicts that the petitioner mostly remained posted in Bilaspur District which is his home district in or around 25 km. He never served tribal area during his service career. The transfer policy of the Government envisages that no Government employee can claim his transfer or posting as a matter of right. It will be the prerogative of the State Government to post/transfer any employee anywhere in the State keeping in view the administrative exigency. 2. That it is respectfully submitted that there are hundred of instances where officers/officials are facing some adverse domestic circumstances but are serving the Government in stations that are far away from their home towns. The personal difficulties cannot give rise to a right to be posted at convenient stations. Allowing all such persons to remain at/near their home stations on continued basis would set a wrong precedent with adverse consequences. 3. That the transfer policy of the Government is in nature of executive instructions and does not confer any enforceable right upon the claimant. It has been held under legal jurisprudence that transfer in the public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer orders illegal unless malafide is proved. An order of transfer is an incident of Government service. FR-2 say that whole time Government servant is at the disposal of the Government which pays them and he may be employed in any manner required by the competent authority. Hence, the present petition is devoid of merit and deserves to be dismissed in the interest of justice. 5. An order of transfer is an incident of Government service. FR-2 say that whole time Government servant is at the disposal of the Government which pays them and he may be employed in any manner required by the competent authority. Hence, the present petition is devoid of merit and deserves to be dismissed in the interest of justice. 5. In rejoinder, the petitioner while denying his service particulars as given in the reply being wrong, has come forward with the version that the factum of his having remained posted at Sarkaghat in District Mandi w.e.f. February, 1996 to July, 1998 and at Taleli in District Mandi from 2003 to 2006, has been concealed deliberately and intentionally and the solitary posting of the respondent initially at Rampur in District Shimla and recently at Mahasu (Shimla) for 6-7 months, that too on his promotion, has been unnecessarily highlighted and the factum of his posting throughout within the radius of 15 km has been withheld with a view to help him, out of way. While submitting that the transfer of the petitioner to GSSS, Bilaspur has been cancelled on the basis of D.O letter Annexure P-9 of an MLA, it is contended that the said MLA being not from Bilaspur constituency had nothing to do in this matter and otherwise also the D.O letter does not disclose any reason justifying the transfer of the 3rd respondent to Bilaspur and cancellation of the transfer order of the petitioner. 6. It is in this backdrop, I have heard learned counsel on both sides and also gone through the original record produced by the 1st respondent, pursuant to the order passed on the previous date. 7. There is no dispute that the transfer of the petitioner to GSSS (Boys), Bilaspur vide Annexure P-1 is prior in time as compared to that of the 3rd respondent, who was transferred there subsequently vide impugned order Annexure P-8. 8. 7. There is no dispute that the transfer of the petitioner to GSSS (Boys), Bilaspur vide Annexure P-1 is prior in time as compared to that of the 3rd respondent, who was transferred there subsequently vide impugned order Annexure P-8. 8. The note, contained in the original record, pertaining to the transfer of the petitioner to GSSS (Boys), Bilaspur, reads as under: Placed below reference has been received from the Deputy Secretary to the Chief Minister on which Hon'ble Chief Minister has approved the following: Shri Madan Singh Candel, Principal may be transferred from GSSS Barmana, District Bilaspur to GSSS (B) Bilaspur, District Bilaspur against vacancy caused due to retirement of present incumbent on 31.3.2012 in condonation of short stay without TTA In this connection, it is submitted that Shri Madan Singh Chandel, Principal (DOB: 17-12-1960) is working in GSS Barmana, District Bilaspur since 18-04.2011 and having short stay. The post of Principal is going to fall vacant on 31-03-2012 at GSSS (B) Bilaspur. The Hon'ble Chief Minister has approved the transfer in condonation of short stay without TTA. Hence, we may issue transfer orders of Shri Madan Singh Chandel, Principal from GSSS Barmana, District Bilaspur to GSSS (B) Bilaspur against vacancy being caused on 31-03-2012 without TTA with the condition that he will join at GSSS (B) Bilaspur on or after 1-04-2012. 9. The above note was placed before the authorities, including the Chief Minister and was approved on 8.3.2012. The approval so accorded had led to issuance of transfer order Annexure P-1. Although nothing is there in the record that the petitioner was transferred on his request made on the ground of his own ailment and also the ailment of his wife, yet there being no denial thereto in reply to the writ petition, it can reasonably be believed that his transfer from Barmana to Bilaspur was ordered on medical grounds. His transfer thus could have not been cancelled, save and except there being larger public interest to do so or in the exigency of service or without recording satisfaction by the competent authority that the incumbent proposed to be transferred in his place had the preferential right or a problem serious in nature, as compared to the own ailment and the ailment of the wife of the petitioner. The record, however, is silent in this behalf. The record, however, is silent in this behalf. The DO letter of Shri Randhir Sharma, MLA addressed to Professor P.K. Dhumal, Chief Minister, H.P., is placed on record as Annexure P-9 to the rejoinder. Sr. No. (iii) thereof pertains to the transfer of the 3rd respondent to GSSS (B), Bilaspur, which reads as follows: (iii) Mr. Kuldeep Singh Dogra Principal may kindly be transferred from GSSS Mahasu Distt. Shimla to GSSS Boys Bilaspur against vacant post going to be vacated on 31st March, 2012 condoning condition of short stay and in supersession of all previous orders and in relaxation of transfer policy in public interest. 10. It is seen that nothing finds mention in the above proposal as to why the 3rd respondent had to be transferred to Bilaspur. 11. The office of the Chief Minister, while conveying the approval of the transfer of the 3rd respondent and other Principals vide communication dated 15.3.2012 to the 1st respondent, had further requested to take necessary action. This has led to place the following note for approval of the authorities: Placed below references have been received from the CM's office vide which Hon'ble Chief Minister has approved the following transfer of Principals (School cadre) in condonation of short stay/in relaxation of transfer policy and in supersession of all previous orders against vacancy/vacancy being caused on 31.3.12. The details of cases alongwith Departmental remarks are as under: Sr No Name of Principal From To Departmental Remarks. 1. Jeet Ram (DOB:20-06-56) (DOJ:30-05-11) (page 96) Kathla (Bilaspur) Charol (Bilaspur) He is having very short stay. The post of Principal is going to fall vacant on 31.3.2012. 2. Arun Kumar (DOB:15-03-69) (DOJ:17-06-11) (Page 96) Himri (Shimla) Chandpur (Bilaspur) He is having very short stay. The post of Principal is going to fall vacant on 31.3.2012. 3. Kuldeep Singh (DOB:8.10.70) DOJ: 17.6.11) Page 96 Mahasu (Shimla) Bilaspur (B) He is having very short stay. The post of Principal is going to fall vacant on 31.3.2012. 4. RakeshPathak (DOB: 1.08.66) (DOJ:23.6.11) Page 96 Nerwa (Shimla) Jukhala vice Chanderv-ati who may further be transferred to GSSS Harnora (BLP) ShriRakeshPathak is having very short stay at GSSS Nerwa (Shimla) and Smt. Chandervati, Principal (DOB: 17-06-1962) is working in GSSS Jukhala (BLP) since 12-11-08 and has completed his normal tenure. The post of Principal is going to fall vacant in GSSS Harnora on 31.3.12. 5. The post of Principal is going to fall vacant in GSSS Harnora on 31.3.12. 5. ChamanLal(DOB: 6-03-67) (DOJ:6.1.10) Page 97 Rampur Keothal (Shimla) Chandpur (Bilaspur) He is having very short stay. The post of Principal is going to fall vacant on 31-03-2012. 6. Desh Raj (DOB:26.4.60) (DOJ:14.10.09) (Page 98) Tharoch (Shimla) Jahu  Mundkhar (Hamirpur) ShriDesh Raj, Principal has completed almost two and half years in GSSS Tharoch (Shimla). The post of Principals are going to fall vacant on 31.3.2012 in GSSS Jahu and Mundkhar, District Hamirpur. The proposals at serial Nos. 1 and 6 are in condonation of short stay and in supersession of all previous orders, hence can be considered against vacancy without TTA in compliance to the approval of the Hon'ble Chief Minister. So far as proposals at serial Nos. 2,3 & 4 are concerned, all these transfers have been approved by the Hon'ble Chief Minster in condonation of short stay and in supersession of all pervious orders and in relaxation of transfer policy. But it is pertinent to mention hare that transfer orders of Shri Madan Singh Chandel, Principal from GSSS Barmana, District Bilaspur to GSSS (B) Bilspur has been issued vide notification, dated 15-03-2012 (Page-95) as per approval of the Hon'ble Chief Minister vide page-94/c read with No. /57-62/ante. In addition to above, it is pertinent to mention here that Hon'ble MLA, Shri Jagat Prakesh Nadda has also given names of Principals for consideration of all these stations and as per CM's approval, the file is also under submission. Keeping in view of above, the file is submitted for orders of the authorities as to whether we may issue transfer orders of all these three incumbents i.e. 2, 3, & 4 as per latest approval of the Hon'ble Chief Minister by cancelling the transfer order of Shri Madan Singh Chandel issued vide notification, dated 15-032012 ? Submitted for orders, please. 12. It is seen that the Chief Minister vide order dated 27.3.2012, had approved only one transfer i.e. at Sr. No. 6 of the above note. The transfer of the 3rd respondent to GSSS, Bilaspur was not approved. However, when the matter was placed by the 1st respondent for issuance of orders in accordance with the approval of the Chief Minister, the Education Minister, had appended the following note and submitted the same to the Chief Minister: 1. Sh. No. 6 of the above note. The transfer of the 3rd respondent to GSSS, Bilaspur was not approved. However, when the matter was placed by the 1st respondent for issuance of orders in accordance with the approval of the Chief Minister, the Education Minister, had appended the following note and submitted the same to the Chief Minister: 1. Sh. Arun Kumar at S. No. 2 was proposed to be transferred from GSSS Himri (Shimla) to GSSS Chandpur may kindly be approved at GSSS Raghunathpura (Bilaspur) vice Sh. Amarjit Principal who may be transferred to GSSS Chandpur (Bilaspur) in condonation of short stay. 2. Ramesh Kumar Principal from GSSS Kot-khai (Girls) to GSSS Kallar (Bilaspur) against vacant post in condonation of stay. 3. S. No. 1, 3 & 4 may be approved. 13. The above note of the Education Minister was approved by the Chief Minister on 30.3.2012. Although nothing suggesting that vide Sr. No. 3 of this note the Education Minister had sought the approval of the transfers at Sr. No. 1, 3 & 4 of the note dated 19.3.2012 extracted supra is there on record, yet for arguments sake even if it is presumed that the approval of the proposals at Sr. No. 1, 3 and 4 of that note was sought by the Education Minister, the same being already declined on 27.3.2012 and there being no changed circumstances nor any fresh material placed before the Chief Minister, no approval to the transfer of 3rd respondent to Bilaspur could have been granted, that too without assigning any reason. 14. In such a situation, this Court is of the considered opinion that cancellation of the transfer of the petitioner to GSSS (Boys) Bilaspur and adjustment of the 3rd respondent there is not in accordance with the transfer policy nor in the public interest or exigency of service and rather to accommodate the 3rd respondent, that too on the DO letter of Shri Randhir Sharma, MLA, which disclose no reason justifying the cancellation of the transfer order of the petitioner, issued earlier and the adjustment of the 3rd respondent. It would thus not be improper to conclude that in view of the transfer of the petitioner ordered on medical ground, has been cancelled merely to help the 3rd respondent, the present is a clear-cut case of arbitrary and colourable exercise of power. 15. It would thus not be improper to conclude that in view of the transfer of the petitioner ordered on medical ground, has been cancelled merely to help the 3rd respondent, the present is a clear-cut case of arbitrary and colourable exercise of power. 15. As regards the service particulars of the petitioner and the 3rd respondent, no doubt they both seem to be on equal footing, however, while mentioning their service particulars in reply to the writ petition, the respondents were not fair, because most probably to prejudice this Court against the petitioner, he has been shown to have remained posted throughout in District Bilaspur whereas he remained posted at Sarkaghat in District Mandi w.e.f. February, 1996 to July, 1998 and at Taleli again in Tehsil Sarkaghat from 2003 to 2006 also. 16. On the other hand, the 3rd respondent, remained posted initially at Rampur (Shimla). However, on this occasion his posting at GSSS Mahasu, that too on his promotion, had been only for about 6-7 months, as the averments to this effect in the writ petition, remained uncontroverted, since the 3rd respondent after his service and presence in person on 15.6.2012, did not turn up to contest the writ petition. 17. True it is that Barmana, the present place of posting of the petitioner being 15 Kms. away from Bilaspur, is not very far away, however, the distance between these two places may not be so relevant and rather it is the ground, i.e. his own ailment and the ailment of his wife, on which he was ordered to be transferred by the competent authority, which weighed in the mind of this Court while arriving at a conclusion that the competent authority was not justified in cancelling his order of transfer and accommodating the 3rd respondent at Bilaspur. Above all, it can reasonably be believed that the order of transfer Annexure P-1 has resulted in legitimate expectation to the petitioner for being posted in GSSS (Boys), Bilaspur and such expectation can not be allowed to be taken away in the given facts and circumstances nor the impugned order Annexure P-8 being not supported by any reason can be said to be legally and factually sustainable. 18. 18. No doubt, the respondent-State being employer of the petitioner is at liberty to transfer its employees from one place to another and an employee has also no vested right to remain posted at a particular station or ask for his transfer and posting at a place of his choice, however, the exceptional cases like the present one, having sanction of the transfer policy also needs to be taken into consideration. 19. Otherwise also, as said hereinabove, no case is made out from the record that the 3rd respondent has any legal right to be posted in GSSS (Boys) Bilaspur in preference to the petitioner. This Court thus finds the present a fit case where the impugned order Annexure P-8 qua the petitioner and the 3rd respondent deserves to be quashed and set aside and pursuant to order Annexure P-1 the petitioner deserves to be permitted to join duties at GSSS (Boys) Bilaspur. In view of what has been stated hereinabove, this writ petition succeeds and the same is accordingly allowed. Consequently, the impugned order Annexure P-8 to the extent of cancellation of the transfer of the petitioner to GSSS (Boys) Bilaspur and adjustment of the 3rd respondent there, is hereby quashed and set aside. There shall be a direction to the respondents to relieve the petitioner from GSSS, Barmana (Bilaspur) forthwith on production of a copy of this judgment by him before the 1st respondent and allow him to join his duties at GSSS (Boys), Bilaspur. Pending application(s), if any, shall also stand disposed of.