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Himachal Pradesh High Court · body

2012 DIGILAW 654 (HP)

Anupama Anand v. State of Himachal Pradesh

2012-10-01

DEEPAK GUPTA, RAJIV SHARMA

body2012
Judgment Deepak Gupta, J. 1.The petitioner, by means of this writ petition, has challenged her transfer from Govt. Sr. Sec. School, Dalhousie to Govt. Sr. Sec. School, Kakira and whereby the private respondent has been adjusted in place of the petitioner. 2. The petitioner, in fact, has spent many years at Dalhousie. She joined at Dalhousie in the year 1999 and has remained posted at Dalhousie since then. Normally, we would have dismissed this writ petition but the averments made in the petition disclose that the petitioner has been transferred only to accommodate respondent No.3, who is not even a regular employee of the State of Himachal Pradesh. 3. From the facts, which now stand proved on record, it is apparent that respondent Manju Bala is an employee of the Punjab Government and was working in Govt. Sr. Sec. School, Dhar Kalan. It appears that she made a representation to the Government of Himachal Pradesh that she may be taken on deputation in Himachal Pradesh. From the record it is apparent that her request was accepted and she was initially deputed on secondment basis at Govt. Sr. Sec. School, Nainikhad. It appears that there was no post at Nainikhad and thereafter respondent No.3 was adjusted at Govt. Sr.Sec. School, Kakira in September, 2011. Respondent No.3, who is an employee of the Punjab Government, thereafter managed to get herself transferred to Dalhousie vide the impugned order. 4. Therefore, on 10th July, 2012 we had directed the Principal Secretary (Education) to inform us how respondent No.3 was recruited in the State of Himachal Pradesh and then ordered to be adjusted at Dalhousie. We had pointed out that there are hundreds of unemployed educated youth qualified to be teachers in H.P. Some of them are agitating for jobs. Despite unemployment in the State we fail to understand what compelled the State to agree to the request of respondent No.3 to be deputed to the State of H.P. on secondment basis. 5. The Principal Secretary (Education) filed his affidavit and since we were not satisfied with the affidavit we asked the Principal Secretary to be present in person. On 26.09.2012 Principal Secretary (Education) was present in person. The entire record has been also seen by us. It appears that respondent No.3 obtained a no objection certificate from the Education Department of Punjab Government for her deputation to the H.P.Govt. in the Education Department. On 26.09.2012 Principal Secretary (Education) was present in person. The entire record has been also seen by us. It appears that respondent No.3 obtained a no objection certificate from the Education Department of Punjab Government for her deputation to the H.P.Govt. in the Education Department. On 27th May, 2011 the Director (Higher Education) sent a letter to the Principal Secretary (Higher Education) that a representation had been received from Manju Bala and permission may be granted to depute her in the Education Department for a period of three years. This request was accepted and approved upto the level of the Hon’ble Education Minister without going into any of the questions raised by us. 6. It was not brought to the notice of the Hon’ble Education Minister or the other senior functionaries that the Recruitment and Promotion Rules to the post of Lecturer do not contain any provision for recruiting teachers on deputation or secondment basis. If the Recruitment and Promotion Rules do not permit employees to be recruited on deputation/secondment, we fail to understand how the State could have acted against the said rules. We are also of the view that normally a person should not be taken on deputation/secondment basis from other State Governments when there is acute unemployment in the State and thousands of people are still waiting to get employed. In such a scenario, we do not understand why a person who is gainfully employed in another State should be employed virtually through the back door without advertising the post and without giving any other person an opportunity of competing for the said post. Such procedure is totally arbitrary, unfair and cannot be supported under any circumstance. 7. Even though the guidelines placed before us issued by the State do envisage that persons from other States can be taken on deputation on foreign service in the State of Himachal Pradesh, there is neither any procedure prescribed nor any guidelines given for the same. Normally, in Recruitment and Promotion Rules even if deputation, as a source of recruitment is mentioned, it can be resorted to only if recruitment is not possible through the ordinary means of recruitment i.e. direct recruitment, promotion, etc. If these normal means of appointment fail to attract qualified people then only the State can resort to the procedure of appointment by deputation/secondment. 8. If these normal means of appointment fail to attract qualified people then only the State can resort to the procedure of appointment by deputation/secondment. 8. In such cases also applications should be invited from all those who want to come on secondment or deputation basis to the State of Himachal Pradesh and applications slipped in through the back door should not be entertained. In case there is a short-fall in a department which cannot be filled in by a normal procedure of recruitment and the State in its wisdom decides that the posts should be filled in on deputation from employees serving in another States then also advertisement should be issued or communication sent to the other States/Undertakings where such persons are available so that all those who want to come to Himachal Pradesh have an equal opportunity and can apply for being deputed/taken on seconment basis in the State of Himachal Pradesh. There should be a level playing field for all. 9. We are, therefore, of the considered view that the appointment of respondent No.3 in Himachal Pradesh on deputation/secondment basis was totally illegal and should be set-aside. However, to ensure that the studies of the students are not affected, we permit respondent No.3 to continue at Kakira till the end of this academic session i.e. 31st March, 2013 whereafter she must go back to the State of Punjab. 10. As far as the petitioner is concerned though we are allowing the present petition, we may make it clear that since the petitioner has already spent 13 years in Dalhousie the State at the end of the academic session should transfer the petitioner out of Dalhousie. The writ petition is disposed of in the aforesaid terms. No order as to costs.