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2012 DIGILAW 604 (HP)

Milap Chand v. State of Himachal Pradesh

2012-09-19

DHARAM CHAND CHAUDHARY

body2012
JUDGMENT Dharam Chand Chaudhary, J. The challenge herein is to order dated 16.5.2011, Annexure P-8 whereby the 2nd respondent has been ordered to be transferred from I&PH Division, Nahan to I&PH Sub-Division, Sarahan in place of the petitioner. The legality and validity of the impugned order has been assailed on the ground, inter-alia, that the petitioner, who is yet to complete his normal tenure at Sarahan, has been transferred at the behest of 3rd and 4th respondents, the Chairman, Zila Parishad, Sirmaur District at Nahan and contractor, respectively in a clandestine manner, i.e. firstly to get his order of transfer issued previously to Nahan vide order dated 20.1.2012, Annexure P-7, under challenge in CWP No.3817 of 2011 cancelled and thereby to allow the said writ petition to render infructuous and its dismissal accordingly by this Court vide judgment dated 21.3.2012, Annexure P-9 and thereafter to manage his transfer again from Sarahan to Nahan vide order dated 16.5.2012, Annexure P-8 impugned before this Court in the present writ petition. Also that he is suffering from serious ailment of cancer and has undergone a major surgery in Fortis Hospital, Mohali and as such, needs an attendant day and night even for answering the call of nature and now his transfer to Nahan has disturbed his entire system of life. 2. The record reveals that the petitioner on his promotion as Assistant Engineer was posted as such in I&PH Division, Nahan vide order dated 31.12.2008, Annexure P-1. He joined his duties there as Assistant Engineer on 14.1.2009. Later on vide Annexure P-2, dated 20.5.2011, he was transferred from I&PH Division, Nahan to I&PH Sub-Division, Sarahan. On joining his duties there, the 3rd and the 4th respondents, who happen to be the Chairman, Zila Parishad and President of BJP Pachhad Block, respectively, started causing interference in his functioning as they wanted to install hand-pumps in the areas of their choice and not at the places where the same were actually required to be installed. The 4th respondent was contractor also and when asked to complete the work awarded to him, they both got offended and started exerting their influence to get the petitioner transferred from Sarahan. The 4th respondent was contractor also and when asked to complete the work awarded to him, they both got offended and started exerting their influence to get the petitioner transferred from Sarahan. They succeeded to get him transferred vide order dated 26.11.2010, Annexure P-3 to Hydrology Project Sub Division, Nahan which was subsequently modified vide order dated 10.5.2011, Annexure P-4 whereby he was transferred as Assistant Engineer to Executive Engineer, I&PH Division, Nahan. He assailed the order of transfer, Annexure P-4 before this Court in CWP No.3817 of 2011. In the interim, the petitioner was allowed to continue at I&PH Sub Division, Sarahan. In the meanwhile, during the pendency of writ petition, the 1st respondent had cancelled the order Annexure P-4, impugned in that writ petition on 20.1.2012 vide Annexure P-7. On this the writ petition came to be dismissed as having rendered infructuous by this Court vide order dated 21.3.2012, Annexure P-9. The petitioner, however, has now again been transferred from I&PH Sub-Division, Sarahan to I&PH Division, Nahan vice 2nd respondent vide order dated 16.5.2012, Annexure P-8, which has been impugned in this writ petition. 3. The stand of the 1st respondent in reply to the writ petition is as follows:- 1. That the present petition is not maintainable in the facts and circumstances of the case. It is respectfully submitted that the transfer of the petitioner from IPH Sub Division Sarahan to the office of the Executive Engineer IPH Division Nahan in place of respondent No.2 has been made on the request of Public Representatives in the Public interest. In compliance to the impugned transfer order the respondent No.2 stand already joined in his place on 17.5.2012 but the petitioner instead of relinquishing the charge on the joining of his substitute filed the present CWP on 19.5.2012 and obtained interim stay. 2. It is relevant to submit here that as per the submission made by the petitioner in his petition in para 11, that he is suffering from Adenocarcinoma of colon (a cancerous disease) and has underwent surgery for the same and following this, he is being administered chemotherapy three day session every fortnight for six months. 2. It is relevant to submit here that as per the submission made by the petitioner in his petition in para 11, that he is suffering from Adenocarcinoma of colon (a cancerous disease) and has underwent surgery for the same and following this, he is being administered chemotherapy three day session every fortnight for six months. Therefore, keeping I view ongoing drought season in Sarahan belt and also the Medical condition of the petitioner as reported by the concerned Superintending Engineer, there seems no illegality arbitrariness and malafide intension of the replying respondent by giving him the convenient posting in the office of Executive Engineer to avoid frequent travelling as the water supply schemes under the control of this Sub-Division are located at far flung areas. As a result of impugned transfer order, the petitioner has not been disturbed rather accommodated in a suitable place in relation to medical facility. Therefore, there appears to be no reason as to why the petitioner should object to such a convenient posting. 3. That being a Govt. servant and holding a Gazetted (Class-I) transferable post, the petitioner has no vested right to remain posted in a particular place and is liable to be posted and transferred anywhere in Himachal Pradesh for utilizing his service. Moreover the employer has right to decide that which person to which place is to be transferred or what work is to be assigned to him. The petitioner has almost completed 2 years and two months at Sarahan and vide impugned transfer order he has been transferred to IPH Division Nahan the District Head Quarter of District Sirmour which is only 45 Kilometers from IPH Sub-Division Sarahan. So far as the guidelines in the transfer policy is concerned, these guidelines, no doubt, lay down that a person should be allowed to complete his normal tenure of three years at a station but these guidelines, as the same itself suggests, are only guidelines and can not be enforced. As held by the Apex Court, they do not give any right to the aggrieved party to have the guidelines enforced by a judicial order. In view of above submission the present petition deserves dismissal and may kindly be dismissed forthwith and the interim order dated 22.5.2012 may kindly be vacated. 4. As held by the Apex Court, they do not give any right to the aggrieved party to have the guidelines enforced by a judicial order. In view of above submission the present petition deserves dismissal and may kindly be dismissed forthwith and the interim order dated 22.5.2012 may kindly be vacated. 4. On the other hand, the 2nd respondent has come forward with the version that keeping in view the health condition of the petitioner, he has been transferred to Nahan, a more convenient place to have access to Fortis Hospital, Mohali where the petitioner is undergoing treatment. In the Sub-Division at Sarahan, there is field work which is more tough as compared to Nahan. Therefore, the competent authority has taken a decision to transfer him to Nahan. 5. The 3rd and 4th respondents while denying their role in the transfer of the petitioner have submitted that they being public representatives/contractor respectively have nothing to do with the posting and transfer of any Government servant. 6. It is in this backdrop, I have heard learned counsel on both sides and also gone through the record, produced by the learned Additional Advocate General during the course of arguments. 7. The stand taken by the 1st respondent that the petitioner has been transferred to Nahan on the request made by the public representatives, no doubt, is in accordance with the record produced before this Court by the said respondent, as Smt. Dayal Payari, President, Zila Parishad, Sirmaur District and Shri Chaker Dhar Bhandari, President, Bhartiya Janta Party, Pachhad Block vide D.O. letters dated 2.4.2012 and 15.2.2012 respectively had requested the Irrigation & Public Health Minister, Himachal Pradesh to transfer the petitioner from I&PH Sub Division, Sarahan to I&PH Division, Nahan vice the 2nd respondent, however, no reason justifying the transfer of the petitioner is found recorded therein. What to speak of the aforesaid public representatives, a request in writing has even been made to the Irrigation & Public Health Minister, Himachal Pradesh by one Shri J.C. Katoch, Advocate near Hotel Yamini, Palampur on 21.4.2012 for transfer of the petitioner from I&PH Sub Division, Sarahan to I&PH Division, Nahan. The records further disclose that some one who has signed as “Suresh” has made a similar request to I&PH Minister. The records further disclose that some one who has signed as “Suresh” has made a similar request to I&PH Minister. It is on the basis of the requests so received, the I&PH Minister had initially requested the 1st respondent vide U.O. No.SPS/IPH Min./2012-1928 dated 4.4.2012 and thereafter vide U.O. No.SPS/IPH Min./2012-2303 dated 30.4.2012 to issue the order of transfer of the petitioner from I&PH Sub Division Sarahan to I&PH Division, Nahan. Both the U.O. letters were dealt with vide N-12 & 13 and in view of the fact that the Minister has already approved the proposal qua transfer of the petitioner to Nahan vice 2nd respondent on 15.5.2012 vide N-10/11, therefore, both U.O. letters were simply filed. It is seen that before according approval by the Minister on 15.5.2012, the proposal was placed before the Law Officer also, who vide N/6 had advised the 1st respondent that irrespective of the fact that the previous writ petition stands dismissed on 21.3.2012, the transfer of the petitioner may not be ordered at this juncture and rather after some gap, i.e. at least after two months. The advice so obtained from the Law Officer on 10.5.2012 was ignored because the competent authority had approved the transfer of the petitioner within 5 days thereafter, i.e. on 15.5.2012 and immediately thereafter impugned order Annexure P-8 came to be issued on the next day, i.e. 16.5.2012. 8. Nothing is there in the record produced before this Court that the petitioner is not able to discharge his duties as Assistant Engineer at Sarahan due to his ailment or that the decision to transfer him has been taken for this reason only. Above all, the D.O. letters submitted by the 3rd and the 4th respondents to the Minister concerned are in no way suggestive of the fact that the petitioner due to his ailment is not in a position to discharge his duties and as such, in the larger public interest needs to be transferred. 9. Be it stated that as per the ratio of the judgment of this Court in Sant Ram Pant Versus State of H.P. & Ors., 2009(3) SLC 206 a public representative has a right to complain against the working of any public servant. 9. Be it stated that as per the ratio of the judgment of this Court in Sant Ram Pant Versus State of H.P. & Ors., 2009(3) SLC 206 a public representative has a right to complain against the working of any public servant. However, such public representative has no right to suggest the name of any particular employee to be transferred in his place and rather it is for the administrative department to examine the matter and take a decision in view of the administrative exigencies and public interest. In the case in hand, respondents No.3 and 4, the so called public representatives do not have any complaint against the working of the petitioner, however, their simple request was to transfer him to Nahan vice the 2nd respondent. Such practice has been deprecated by this Court in the judgment rendered in Sant Ram Pant’s case, cited supra. The competent authority should not have transferred the petitioner on the basis of the D.O. letters of the 3rd and the th respondents, discussed supra. The record perused by this Court is thus suggestive of the fact that the transfer of the petitioner from I&PH Sub Division, Sarahan to I&PH Division, Nahan is not in the public interest and rather to accommodate the 2nd respondent at Sarahan. 10. Though the 3rd and the 4th respondents have come forward with the version that they being public representatives, have nothing to do with the transfer of the Government employees, however, it lies ill in their mouth to claim so, because the D.O. letters on record reveal that it is they who requested for transfer of the petitioner to Nahan vice the 2nd respondent, however, without any reason thereto. The order of transfer Annexure P-8 thus cannot be said to have been issued either in the exigencies of service or in the larger public interest as the respondents claim. 11. Irrespective of what has been stated hereinabove, it is significant to note that the petitioner is suffering from a serious ailment of cancer and is under treatment at Fortis Hospital, Mohali. Not only this, but the petitioner himself submits that 24 hours he needs an attendant even for answering the call of nature also. In the same breath he further submits that the impugned order of transfer has disturbed his entire system of life. Not only this, but the petitioner himself submits that 24 hours he needs an attendant even for answering the call of nature also. In the same breath he further submits that the impugned order of transfer has disturbed his entire system of life. It is not understandable as to how his life style will be affected on account of his transfer from Sarahan to Nahan, particularly, when the transferred place is a district headquarters and much nearer to Fortis Hospital, Mohali. If his condition due to ailment is such that even for answering the call of nature also, he needs help of someone, he cannot discharge multifarious nature of duties including field duties attached to the post of an Assistant Engineer to the satisfaction of all concerned and in the larger public interest. It is relevant to note that in a Sub-Division, there exits only one post of Assistant Engineer and definitely the work will suffer if the incumbent posted there is suffering from such a serious ailment. True it is that the condition of his health as discussed supra, can either be taken on the date of institution of this writ petition, i.e. 21.5.2012 or as on 30.7.2012, the day when reply to the writ petition was filed, on the basis of the information to this effect made available by the concerned Superintending Engineer to the 1st respondent and there is nothing before this Court about the present status of his health condition, however, the facts remain that in view of such health condition, it would not be improper to conclude that Nahan is more convenient place as compared to Sarahan for the posting of the petitioner. It is significant to note that he has been transferred within the same Division, i.e. I&PH Division, Nahan because Sub-Division, Sarahan, his present place of posting also falls within the jurisdiction of this Division. At Nahan which is at a distance of 45 Kms. from Sarahan, he has been posted as Assistant Engineer to the Executive Engineer and most probably no field duty is assigned to that office. Otherwise also, it is not understandable as to why the petitioner is interested to remain posted at Sarahan alone. No doubt, in May, 2012, when he was transferred to Nahan, his stay at Sarahan was two years. Otherwise also, it is not understandable as to why the petitioner is interested to remain posted at Sarahan alone. No doubt, in May, 2012, when he was transferred to Nahan, his stay at Sarahan was two years. At this stage, his stay at Sarahan is about two years four months against the normal tenure of three years. He is not a Class-IV or Class-III employee and rather a Class-I Gazetted Officer. He cannot thus be said to be aggrieved in any manner whatsoever by his transfer to some other place even before the completion of normal tenure of three years. The paramount consideration, however, is that the transfer should be in the larger public interest and in the exigencies of service and not the result of arbitrary and colourable exercise of powers. The case of the 1st respondent that the transfer of the petitioner is in the larger public interest stands discarded by this Court hereinabove. However, that does not mean that the competent authority cannot take a decision afresh after taking overall assessment of the health condition of the petitioner and if his continuance as Assistant Engineer at Sarahan is not in the larger public interest. After taking a conscious decision the petitioner can always be transferred from Sarahan even before completion of the tenure of three years. 12. In view of the above discussion, this writ petition is disposed of with the direction that the 1st respondent shall obtain a report qua the latest health condition of the petitioner and also his capacity to perform the duties including field duty attached to the post of an Assistant Engineer and also qua his regularity in attending the office from the Superintending Engineer, I&PH Circle, Nahan, District Sirmaur and thereafter to take a conscious decision on the implementation of the order of impugned transfer, Annexure P-8. Till then the petitioner be not compelled to join duties at the transferred place, i.e. Nahan. 13. Pending application(s), if any, shall also stand disposed of.