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Himachal Pradesh High Court · body

2013 DIGILAW 533 (HP)

Janak Singh Rana v. HPSEB LIMITED

2013-06-13

A.M.KHANWILKAR, KULDIP SINGH

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JUDGMENT A.M.KHANWILKAR, J. 1. HEARD counsel for the parties Rule. 2. RULE made returnable forthwith by consent. Counsel for the respective respondents waive notice. As short question is involved, petition is taken up for final disposal forthwith by consent. This writ petition under Article 226 of the Constitution of India takes exception to the transfer and posting order, dated 20th March, 2013, issued under the signature of Executive Director (Pers), H.P. State Electricity Board Limited, bearing office order No. 95/HPSEB(SECTT)/2013. 3. THE principal ground, on which the transfer order has been challenged, is that the same is in breach of the transfer policy of the respondent Company. As per Clause 17 of the said policy, normally an officer cannot be transferred from a station until and unless he completes minimum three years of service. Indeed, that condition may not apply if the transfer was necessitated due to administrative ground or on request of employee on medical ground. The other clause of the policy, which is relevant and has been pressed into service by the petitioner, is Clause 10. It predicates that the officers likely to retire within two years, efforts should be made to give them postings in the areas as convenient as possible subject to vacancy. The grievance of the petitioner is that, these criterion specified in the policy are observed in breach by the respondents Company. 4. BEFORE we proceed to analyze the matter further, we deem it apposite to reproduce the transfer order, which reads thus: "HIMACHAL PRADESH STATE ELECTY. BOARD LIMITED (A State Government Undertaking) OFFICE ORDER No. 95/HPSEB(SECTT)/2013 Dated:20.3.2013 The transfers and postings of following Sr. Executive Engineers (Elect) are hereby ordered with immediate effect: Sr. Name of Officer From To No. 1. Er. Ajaib Singh O/O SE(PR and Elect. Divn Parwanoo ALDC) Shimla vice Er. J.S. Rana, transferred. 2. Er. J.S. Rana Elect. Divn O/O SE(PR and ALDC) Parwanoo Shimla vice Sr. No.1 above and viceversa. Er. Rana will be entitled to usual TTA/Joining time as admissible under the rules whereas other officer will not get the same. Sd/ Executive Director (Pers), H.P. State Electy. Board Ltd. Shimla4." Notably, this transfer order does not expressly state that the transfer was necessitated due to administrative grounds. It is not in dispute that the petitioner was posted at Electric Division, Parwanoo, only on 16th August, 2011. Sd/ Executive Director (Pers), H.P. State Electy. Board Ltd. Shimla4." Notably, this transfer order does not expressly state that the transfer was necessitated due to administrative grounds. It is not in dispute that the petitioner was posted at Electric Division, Parwanoo, only on 16th August, 2011. That means, on the date of impugned order, he had not completed minimum three years of service. As aforesaid, the transfer order does not mention that the transfer of the petitioner was necessitated on administrative grounds. 5. THE defence of the respondents Company is that Clause 17 of the policy providing for tenure of three years of service at one place is not applicable to the Company, as is stated in communication dated 19th September, 1985. 6. THIS argument, in the first place, clearly overlooks that a new policy has been framed in the year 2008. For that reason alone, the communication pressed into service by the respondents Company will be of no avail. Further, the document, Annexure RA III, reveals that the policy of 2008 is in supersession to all previous orders/instructions issued from time to time, which nullifies the effect of stand taken in communication dated 19th September, 1985. In any case, since the transfer order does not state that the transfer was necessitated due to administrative reasons, such transfer order cannot be sustained in the eyes of law. Even the second ground urged by the petitioner, the same is indefensible. In that, it is common ground that the petitioner was likely to attain age of superannuation within 22 months from the date of issuance of impugned transfer order. In that case, as per clause 10 of the policy, the petitioner should have been offered option to be posted at a convenient place where vacancy was available. That procedure has not been fulfilled by the respondents Company. No such case has been made out in the reply affidavit as filed. In either case, the impugned transfer order cannot be sustained. 7. IN rejoinder affidavit, the petitioner has also highlighted the fact, which has come to his notice only recently after filing of the writ petition, that the petitioner was sought to be transferred to accommodate the private respondent No. 3 at the instance of Power Minister, as can be seen from U.O. Letter No. SPS/Power Minister (HPSEB Ltd) 201358, dated 20th February, 2013. This assertion made on affidavit by the petitioner has remained unchallenged. 8. TAKING over all view of the matter, therefore, we have no hesitation in quashing and setting aside the impugned transfer order dated 20th March, 2013, and direct the respondents Company to permit the petitioner to continue to be posted at Electric Division, Parwanoo, until completion of three years from the date of original joining or till the petitioner opts for suitable posting at the place of vacancy offered to him by the Company in terms of Clause 10 of the policy, whichever is earlier. The petition disposed of accordingly.