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2013 DIGILAW 1034 (HP)

GIAN CHAND v. STATE OF H. P.

2013-12-19

DEV DARSHAN SUD, DHARAM CHAND CHAUDHARY

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JUDGEMENT DHARAM CHAND CHAUDHARY, J.- 1. THIS case has a checkered history. The petitioner, who was posted as Head Teacher in Government Primary School, Janot (Education Block Sarahan) was transferred vide order dated 26.7.2013, Annexure P-1 to Government Primary School, Nagel Saketi (Education Block, Surla) vice respondent No.4. Admittedly, he was relieved from Government Primary School, Janot and joined his duties at the transferred station, i.e. Government Primary School, Nagel Saketi on 27.7.2013, of course, during the summer break. Respondent No.4 being on summer vacation was relieved from the school in absentia. Against her transfer, she preferred civil writ petition No.6006 of 2013, which was finally disposed of vide judgment dated 7.8.2013. The operative portion thereof reads as follows:- "2. The petitioner has already filed a representation highlighting her difficulties to the Deputy Director (Education) district Sirmaur, HP which is pending decision. Now the petitioner feels satisfied in case, she is given an opportunity to file proper and fresh representation to the 1st respondent, i.e., the Director (Elementary) Education which shall be decided by him in a time bound manner. The learned Additional Advocate General has no objection qua the above submission, hence allowed. As such we hereby direct that let a proper representation with supporting documents, be filed by the petitioner to the 1st respondent within a period of ten days from today along with certified copy of this judgment/order highlighting her difficulties, who shall take a final decision thereon within three weeks thereafter sympathetically, keeping in view the medical problem being faced by the petitioner. 3. With these directions, the petition stands disposed of, so also pending applications, if any. 4. It is made clear that till final decision is taken by the 1st respondent, the petitioner, who stands already relieved, shall not be compelled to join at the new place of posting, keeping in view her medical problem. Dasti copy." 2. IT is seen that there was a direction to the 1st and 2nd respondents not to compel the 4th respondent (petitioner in the above writ petition) to join her duties at new place of posting, i.e. Government Primary School, Janot. Dasti copy." 2. IT is seen that there was a direction to the 1st and 2nd respondents not to compel the 4th respondent (petitioner in the above writ petition) to join her duties at new place of posting, i.e. Government Primary School, Janot. She, however, managed the interpretation of the judgment of this Court in a way that vide judgment (supra), passed by a Co-ordinate Bench of this Court in a writ petition, she preferred, has been allowed to continue in Government Primary School, Nagel Saketi, as the office order issued by Centre Head Teacher, Moginand, Education Block, Surla, District Sirmaur reveals. This has led in filing CMP (CWP No.6006 of 2013) No.15094 of 2013 by the petitioner (respondent No.3 in the said writ petition). The application when came to be listed before the same Bench, which has rendered the judgment in CWP No.6006 of 2013 on 26.8.2013, order (Annexure P-4), which reads as follows, came to be passed:- "Our order dated 7.8.2013 passed in CWP No.6006/2013-A is quite clear and unambiguous, whereby it was made clear that till final decision is taken by the 1st respondent, the petitioner shall not be compelled to join at the new place of posting and now vide Annexure R-1, it is alleged to have been wrongly interpreted. Therefore, the petitioner who stands already relieved rightly or wrongly vide Annexure P-2 [in the main petition], he shall not be compelled to join the transferred station, whereas the private respondent shall remain at the place of present posting, i.e. GPS Nagel Saketi till the matter is finally decided by the 1st respondent. In case the respondents shall interpret the order otherwise, they shall be amenable to contempt of this Court. Application stands disposed of. Copy Dasti." Therefore, it is crystal clear that the transfer of the 4th respondent was not stayed by this Court in the writ petition she filed because she was already relieved, of course, in absentia and rather the only direction was to the respondent-State not to compel her to join her duties at the transferred station, i.e. Government Primary School, Janot. She, however, managed her continuation in the same school as noticed, supra. The petitioner, therefore, was compelled to serve the 2nd and 3rd respondents as well as Block Primary Education Officer, Surla Block and Centre Head Teacher, GPS, Moginand, Education Block, Surla with legal notice, Annexure P-5. She, however, managed her continuation in the same school as noticed, supra. The petitioner, therefore, was compelled to serve the 2nd and 3rd respondents as well as Block Primary Education Officer, Surla Block and Centre Head Teacher, GPS, Moginand, Education Block, Surla with legal notice, Annexure P-5. In the meanwhile pursuant to the judgment, Annexure P-2 of this Court in the writ petition filed by respondent No.4, her representation was decided by the 2nd respondent vide impugned order dated 23rd October, 2013, Annexure P-7 whereby the transfer of respondent No.4 from Government Primary School, Nagel Saketi to Government Primary School, Janot has been cancelled. Hence, this petition with the following prayers:- "(i) That a writ in the nature of certiorari may be issued and Annexure P-7, dated 23.10.2013 may kindly be quashed and set aside after calling the same from respondents. (ii) That a writ in the nature of mandamus may be issued directing the respondents to allow the petitioner to continue work at GPS, Nagel Saketi, as ordered vide Annexure P-1, dated 26.7.2013 for a normal tenure of three to five years. Further respondents be directed to pay salary to the petitioner w.e.f. September, 2013. (iii) To produce the entire record pertaining to the case before this Hon'ble Court for its kind perusal." The operation of the impugned order, Annexure P-7 whereby the 2nd respondent has cancelled the transfer of respondent No.4, was stayed vide interim order passed in this petition on 29.10.2013. 3. CONSEQUENT upon the direction of this Court, the respondent-State has produce the record leading to the transfer of the petitioner from Government Primary School, Janot to Government Primary School, Nagel Saketi vice respondent No.4 vide order Annexure P-1. 4. THE record reveals that the petitioner is recipient of U.O. Note bearing No.Secy/CM-07100/2012- VIP-A-63867, dated 19th July, 2013. This Court in a catena of judgments has deprecated the practice of transfer of Govt. servants at the instance of Ministers/MLAs and other public representatives, including the workers of political parties, of course leaving open to such public representatives to make complaint, if any, against Govt. servant to the competent authority. The competent authority, i.e. Head of Department has also been authorized to effect the transfers of Govt. servants in accordance with law and the policy, if any, formulated in this behalf in the exigency of service and public interest. servant to the competent authority. The competent authority, i.e. Head of Department has also been authorized to effect the transfers of Govt. servants in accordance with law and the policy, if any, formulated in this behalf in the exigency of service and public interest. We draw support to such findings from the judgment of a coordinate Bench of this Court in Amir Chand Vs. State of H.P and others, CWP No.5351 of 2012 and that of the principal Bench of this Court in Sanjay Kumar Vs. State of H.P. and others, CWP No.801 of 2013. This Bench itself in a recent judgment, delivered on 22.11.2013 in Amar Chand Vs. State of H.P and others, CWP No. 8267 of 2013, while quashing clause 17 of the transfer policy, reiterated the law laid down in the judgments supra and held that the transfers of Govt. servants on the recommendations of the political executive being not legally sustainable should be quashed. The relevant portion of the judgment reads as follows: ".6. What was urged before us by learned Advocate General emphatically is that it is open to the State to act on the representation of public representatives at all levels. In particular, he has referred to Clause 17 of the Policy which states that on request from public representatives at all levels, on administrative exigencies and in the public interest, transfer shall be considered by the competent authority. 7. We are unable to accept this contention. What we find is that the State now seeks to nullify the decisions of this Court which have been upheld by the Supreme Court. In Amir Chand's case this Court had considered in exten so the grounds on which transfer can be effected in accordance with law. The Court had also considered in detail the law applicable. It inter alia followed the decisions of the Supreme Court in Tarlochan Dev Sharma vs. State of Punjab and others (2001) 6 SCC 260 , Sarvesh Kumar Awasthi vs. U.P. Jal Nigam and others (2003) 11 SCC 740, Suresh Chandra Sharma v. Chairman, U.P. SEB and others (2005) 3 SCC 153 to hold that transfer has to be effected on the basis of certain set norms and not arbitrarily without application of mind. 8. Subsequently, in Sanjay Kumar's case these very principles have been re-affirmed. 8. Subsequently, in Sanjay Kumar's case these very principles have been re-affirmed. We note that in Amir Chand's case, inter alia four specific directions had been issued namely:- "....4. Coming to the issue of political patronage. On the basis of the judgments cited hereinabove, there can be no manner of doubt that the elected representatives do have a right to complain about the working of an official, but once such a complaint is made, then it must be sent to the head of the administrative department, who should verify the complaint and if the complaint is found to be true, then alone can the employee be transferred. 5. We are, however, of the view that the elected representative cannot have a right to claim that a particular employee should be posted at a particular station. The choice has to be made by the administrative head, i.e. the Executive and not by the legislators. Where an employee is to be posted must be decided by the administration. It is for the officers to show their independence by ensuring that they do not order transfers merely on the asking of an MLA or Minister. They can always send back a proposal showing why the same cannot be accepted. 6. We, therefore, direct that whenever any transfer is ordered not by the departments, but on the recommendations of a Minister or MLA, then before ordering the transfer, views of the administrative department must be ascertained. Only after ascertaining the views of the administrative department, the transfer may be ordered if approved by the administrative departments. 7. No transfer should be ordered at the behest of party workers or others who have no connection either with the legislature or the executive. These persons have no right to recommend that an employee should be posted at a particular place. In case they want to complain about the functioning of the employee then the complaint must be made to the Minister In charge and/or the Head of the Department. Only after the complaint is verified should action be taken. We, however, reiterate that no transfer should be made at the behest of party workers." 9. We fail to see how Clause 17 of the policy, as noticed by us supra, can be construed to be in consonance with law as considered in two judgments Sanjay Kumar and Amir Chand's cases. We, however, reiterate that no transfer should be made at the behest of party workers." 9. We fail to see how Clause 17 of the policy, as noticed by us supra, can be construed to be in consonance with law as considered in two judgments Sanjay Kumar and Amir Chand's cases. We cannot accept the submission of the State that the Hon'ble Supreme Court by its order in the Special Leave Petition (supra) has approved the new policy notified on 10th July, 2013. The Supreme Court's order cannot be read to verify or modify the two judgments supra. This submission, to the contrary, cannot be accepted. It is trite that no policy/regulation can be framed by the State which is not in consonance with law and with the law laid down by the Court. We therefore dispose of all these writ petitions with the following directions: (a) Clause 17 of the Transfer Policy is quashed and set aside and all transfers effected on the basis of D.O./U.O. notes are quashed and set aside and are not permitted now or in future; (b) If the petitioners in all these petitions or other employees, as also the private respondents have served at one particular place of posting beyond the normal tenure, it will be open to the respondent- State to transfer them in accordance with law; (c) The provisions of the Transfer Policy shall be in consonance with the directions issued by this Court in Amir Chand's case (supra). Any provision, which does not comply with the directions, will not be implemented. 10. We note that despite the law pronounced by this Court on the principles as laid down by the Hon'ble Supreme Court in various judgments, transfers are being effected contrary to those principles. Any provision, which does not comply with the directions, will not be implemented. 10. We note that despite the law pronounced by this Court on the principles as laid down by the Hon'ble Supreme Court in various judgments, transfers are being effected contrary to those principles. The docket of this Court has become choked with petitions challenging such transfers, which not only affects the calendar of the Court but also has deleterious effect on the education system as most of the petitioners are teachers, which is not to say that employees of the other departments are not approaching this Court for cancellation of transfers on D.O./U.O. notes." Therefore, the transfer of petitioner from GPS Nagel Suketi to GPS Janot, no doubt now stands cancelled vide impugned order Annexure P-7, however, he being recipient of UO Note of Hon'ble the Chief Minister and the transfer order being issued pursuant to UO Note without asking for and ascertaining the view of the administrative department, i.e. Department of Education, cannot also be held to be legal and valid in view of the law laid down by this Court in Amir Chand Vs. State of H.P and others, CWP No.5351 of 2012, Sanjay Kumar Vs. State of H.P. and others, CWP No.801 of 2013 and Amar Chand Vs. State of H.P and others, CWP No. 8267 of 2013. 5. BE it stated that the service particulars of both, petitioner and respondent No.4 detailed below para 5 of the reply to the writ petition filed on behalf of respondents No.1 to 3 reveal that respondent No.4 is working in the same school, i.e. Government Primary School, Nagel Saketi w.e.f. 14.12.2004. Her stay in the said school, therefore, is around 9 years. Therefore, there is no legal and vested right in her to remain posted in that very school. Her stay for such a longer time in the said school rather is not in the better academic interest. The impugned order, Annexure P-7 is not speaking one and rather terse as the same does not disclose any legal and valid reason for cancellation of her transfer and allowing her to continue in that very school. As regards health problem, if any, she is having, would also not entitle her to be retained in the same school where she is working for the last 9 years. As regards health problem, if any, she is having, would also not entitle her to be retained in the same school where she is working for the last 9 years. Therefore, she could have been considered for being posted in any other school, may be of her choice, had she been found to be suffering from any ailment of a nature coming in her way to join duties at the transferred station, i.e. Government Primary School, Janot. 6. HOWEVER, irrespective of the observations hereinabove, we refrain ourselves from quashing the impugned order, Annexure P-7 because the petitioner being recipient of the U.O. Note, as noticed supra, is also not entitled to remain posted in Government Primary School, Nagel Saketi pursuant to the order Annexure P-1. Therefore, we leave it open to the respondent-State to transfer the petitioner and respondent No.4 in the light of the observations hereinabove and also in accordance with law. Before parting with the judgment, we are satisfied that the respondent No.4 has managed her rejoining in Government Primary School, Nagel Saketi in connivance with Block Education Officer, Surla and Centre Head Teacher, Moginand by intentionally misinterpreting the judgment, Annexure P-2 of this Court passed in CWP No.6006 of 2013. However, without making any other and further observation qua this aspect of the matter, we leave it open to the 2nd respondent to inquire into the matter and take appropriate action against respondent No.4, Block Education Officer, Surla Block and Centre Head Teacher, Government Primary School, Moginand, Education Block, Surla, if found to be at fault, of course after affording them due opportunity of being heard. 7. WITH the above observations, the petition stands disposed of finally. Pending applications, if any, also shall stand disposed of.