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2013 DIGILAW 540 (HP)

KEHAR SINGH v. HPSEB LIMITED

2013-06-14

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 petition, under Article 226 of the Constitution of India, challenges the transfer order dated 5th March, 2013, Annexure P5. The petitioner came to be transferred from Electrical Division Chamba to Pangi Valley Electrical Division Killar with a view to accommodate respondent No. 3, who was to be transferred from Pangi Valley Electrical Division Killar. 3. THE sole ground agitated before us is that the transfer of petitioner was in the teeth of the policy of the department, as spelt out in office memorandum dated 10th April, 2008. Clause 7 of the said policy reads thus : "7. Posting of Employees in Tribal/Difficult Areas: While posting employees in Tribal/ Difficult/Rural Areas the following observations were made by the Hon'ble High Court vide judgement dated 27082007 CWP No. 1105/2006 titled as Sushila Sharma, Head Teacher V/s State of H.P. and others. "It shall be ensured that all the employees are treated fairly and equally and every employee during his tenure of service serves in Tribal/Difficult Areas. When transfers are made, the Administrative Department shall ensure that the employees who have already served in Tribal/Difficult Areas are not again sent to these Areas and there is a continuous process of change whereby all the employees have a chance to serve in Tribal/Difficult Areas and measures shall be taken to ensure that employees (obviously influential) who have managed to remain posted in the Urban Areas/Cities are posed to Rural/Remote Areas and Tribal/Difficult Areas in the transfer season when the transfers are made." In view of above all employees during their tenure of service will serve for at least one tenure in the Tribal/Difficult Areas. In order to earn their promotion, service in such areas will be mandatory. This would be subject to adequate number of posts being available in such areas. However, this will not apply to those employees who have less than 5 years to superannuate. The R&P Rules should incorporate this stipulation wherever applicable. A common provision to this effect will be devised by the Department of Personnel after having obtained the approval of competent authority. No Government employee can claim his transfer or posting as a matter of right. The R&P Rules should incorporate this stipulation wherever applicable. A common provision to this effect will be devised by the Department of Personnel after having obtained the approval of competent authority. 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 convenience." 4. ON plain reading of the abovesaid policy, it is evident that the same is the outcome of judicial pronouncement, which has been acted upon by the department. Indisputably, that decision is binding on the department. In spite of this policy and the binding precedent, the department chose to transfer the petitioner, notwithstanding the fact, that he was to attain age of superannuation in less than five years from March 2013. Thus understood, the impugned order passed against the petitioner is in the teeth of the policy of the department and, therefore, cannot be sustained in law. We, accordingly, quash and set aside the same, as a whole and direct respondents No. 1 and 2 to post the petitioner once again at Electrical Division Chamba and allow him to continue to work on the said post till he becomes due for transfer as per the policy and including if he is required to be transferred for administrative reasons, whichever is earlier. 5. WE place on record that respondent No. 3 wanted to file reply affidavit. However, the reply of respondent No. 3 cannot improve upon this position, which is indisputable. As a matter of fact, the grievance of the petitioner is that the impugned order has been issued only with a view to accommodate respondent No. 3 at his instance. We do not intend to examine that contention for the reasons already recorded. 6. THE petition is disposed of on the above terms.